ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000979
Parties:
| Worker | Employer |
Anonymised Parties | {A Worker} | {An Employer} |
Representatives | Self-represented | HR of Employer |
Dispute(s):
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 - 00000979 | 05/01/2023 |
Workplace Relations Commission Adjudication Officer: Paul McKeon
Date of Hearing: 01/09/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) 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 submissions relevant to the dispute.
The hearing of this complaint was originally scheduled to take place on 18 August 2023 but was adjourned due to the Worker a lay litigant requiring more time to review the submission the Employer had furnished which was received just as the hearing was to commence.
In the interest of fair procedures, and to afford the Worker an opportunity to review the submission of the Employer and to afford the Worker with an opportunity to respond also should they wish to the Employers submission, I adjourned the hearing and rescheduled a new hearing date for the 01 September 2023.
The matter on the 01 September was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
As this is a trade dispute under section 13 of the Industrial Relations Act, 1969 the remote hearing took place in private, and the parties are not named.
At the outset of the hearing, I clarified that this is a trade dispute referred by the Worker under section 13 of the Industrial Relations Act, 1969. By way information I also clarified that this is a voluntary process and there is no formal evidence taken, and no witness evidence.
In that context there are no findings of fact made.
I will refer to this employee as “Worker.” And the company as the “Employer.”.
Background:
The Worker referred her dispute to the Director General of the WRC in relation to bullying and harassment procedures on the 05 January 2023. The Worker was employed as a Store Deputy Manager by the Employer from 14 October 2022 until she resigned on 09 January 2023. She worked 40 hours per week and was paid €2250 gross per month. The Worker submits that she was treated in an unprofessional manner by another staff member during her induction and training in phase and over the course of her employment with the Employer. The Worker believes that the treatment that she was subjected to by the other staff member amounts to bullying and harassment. In response the Employer submits that any Worker seeking a recommendation under Section 13 of the Industrial Relations Act needs to exhaust the local remedies available and the Worker in this case did not apart from the initial stages exhaust the Employers complaint procedure prior to her resignation. The Employer further submitted that this investigation would also have provided an opportunity for the Worker to have her grievances heard and investigated but she decided to resign and therefore was not available to participate any further in the investigation. |
Summary of Workers Case:
At the hearing on 01 September 2023, the Worker submitted that they referred their dispute to the Director General of the WRC in relation to bullying and harassment procedures on 05 January 2023. The Worker submits that she was treated in an unprofessional manner by another staff member (Store Manager) during her induction and training in phase over the course of her employment with the Employer. The Worker believes that the treatment that she was subjected to by the Store Manager amounts to bullying and harassment. The Worker advised the hearing that she worked as a Deputy Manager in one of the Employers store branches from 14 October 2022 until her resignation on the 09 January 2023. The Worker submits her complaint of bullying and harassment to the WRC on the following grounds: The Worker submits that she was verbally harassed and bullied almost daily by the Store Manager since she started working with the Employer in October of 2022 until she resigned in January 2023. The Worker stated that the Store Manager would assign her many tasks to complete in short turnaround time that was unreasonable to expect anyone to finish in the time that she was provided. The Worker further stated that at times the Store Manager would assign her tasks unrelated to her job like cleaning, sweeping, and wiping away the dust in the shop. The Worker told the hearing that the Store Manager was very hostile towards her at all times and would make remarks towards her at times noting that she should quit the job and that she is not a good manager because she struggles with allocating tasks to other staff members. The Worker informed the hearing that she accepted how she was treated by the Store Manager for a number of months until the 22 December 2022 when she said after another incident with him in which she alleged she was subject to unacceptable treatment again which left her feeling humiliated she informed him that she would be making a complaint against him. On 22 December the Worker further informed the hearing that she submitted a complaint to HR. The Worker submitted that on the 23 December 2022, the Area Manager contacted her by way of telephone call to discuss the matter further. During that call the Worker noted that she was informed she would need to submit her complaint in writing which she did so on the 24 December 2022. On the 30 December 2022 the Worker submits she had a meeting with HR and informed them she was thinking of resigning because of the incident. The Worker said over the course of the Christmas break she felt upset and also dreaded thinking about returning to the workplace as a result of the incident with the other staff member. She stated that four days after lodging her complaint and speaking to the Area manager, her Employer contacted her to enquire when she would be able to return to work. The Worker submitted that she informed her Employer that she was not prepared to return to work alongside the Store Manager she made the complaint about. In response the Worker noted that the Employer offered her to work in a different store but due to childcare arrangements and its location, she refused. Shortly after this conversation, the Worker submitted on this point that this experience with the other staff member left her feeling quite upset, distressed, and humiliated and on the 09 January 2023, she submitted her letter of resignation as she came to the decision that after the experience, she had ultimately made the decision that she did not want to work for the Employer anymore. The Worker further submitted that the reason she did not afford the Employer further time to investigate and conclude the investigation it commenced was in her view as a result of the work environment being too hostile and she felt so isolated that she could not take any more and the week before she resigned, she was unable to go to work, therefore she made the decision to resign. |
Summary of Employer’s Case:
In relation to the dispute raised by the Worker, the Employer submitted that the Worker worked as a Deputy Manager in one of the Employers store branches from 14 October 2022 until her resignation on the 09 January 2023.
The Employer submitted that they had been aware of concerns with the Workers performance as the Store Manager in which the Worker raised a dispute in relation to had reached out to HR for support to discuss his concerns.
On the 22 December 2022, the Employer submitted that the Store Manger had a call with HR Generalist, and it was agreed during that call that the Store Manager would address some of his concerns in an informal meeting with the Worker as she was not due a formal probation review until after Christmas and some of the concerns were impacting on other team members.
At that meeting, the Employer submitted that the Store Manager wished to discuss pace of work on daily tasks assigned to the Worker, not giving direction to the team members and a resistance to certain tasks being given e.g cleaning the store as according to the Employer, the Worker felt this was not her job.
During the meeting, the Employer submits that the Worker got upset and she began to cry, so the Store Manager ended the meeting as to not cause further upset.
The Employer informed the hearing that the Store Manager then contacted HR afterwards to let them know and let the Worker go home.
The Employer further informed the hearing that on 22 December 2022 the Worker submitted a complaint to HR which was assigned to the District Manager, who phoned the Worker on the 23 December 2022 to discuss the matter further.
During that call the District Manager reminded the Worker of its policy and indicated if she wished to raise a formal complaint, as she appeared to be verbalising, she would need to submit it in writing with as much specific detail as possible for investigation.
The Employer further added that the District Manager followed up with the Worker in this regard in writing after the phone call ended.
The Employer further submitted that the Worker submitted a complaint to the District Manager by way of email on the 24 December 2022.
Following the Christmas bank holidays, a meeting was arranged with the Worker for the 30 December 2022 between the District Manager and a note taker.
At this meeting the Employer informed the hearing that the Worker expressed on numerous occasions she wished to resign in which the District Manager asked the Worker to reconsider her decision and to take a few days to think about it which the Employer submitted the Worker confirmed that she would think about it.
The Employer advised the hearing that a meeting was held on the 03 January 2023 with District Manager and the Store Manager to get his response to the allegations.
As part of this process, the Employer informed the hearing that it attempted to contact the Worker several times between the 02 January & 09 January 2023.
The Employer submitted that this was done in order to provide her with the statement provided by the Store Manager.
In this regard the Employer submitted that the District Manager never received any response from the Worker in relation to the complaint and on the 09 of January 2023, the Employer received notification of the Workers resignation.
The Employer stated that its response up until the point of the Workers resignation demonstrated that they as an Employer take allegations of this nature very seriously and that they make all efforts to prevent these behaviours occurring in the workplace by providing all employees with the dignity at work policy and online training at the beginning of their employment.
The Employer submitted that it is their position that once notified of the Workers complaint on the 24 December 2022, they evoked the Employers procedure and commenced an internal investigation with a meeting held with the Worker on the 29 December 2022 and follow up meeting with Store Manager on the 03 January 2023.
The Employer further submits that it is regretful that the Worker did not engage with the process further to allow them to investigate the matter fully and resolve the matter for her.
It is in this context the Employer further submits that it is always a preference for the Employer to fully investigate and resolve these matters, rather than have an employee resign.
However, the Employer also noted that it is within this context that there was a formal grievance procedure available to the Worker which she did not apart from the initial stages of the complaint procedure utilise or exhaust prior to her resignation.
On further note, the Employer concluding remarks was that a Worker needs to exhaust the local remedies available and the Worker in this case did not apart from the initial stages of the complaint procedure utilise or exhaust prior to her resignation.
The Employer submitted that this investigation would also have provided an opportunity for the Worker to have her grievances heard and investigated.
However, the Respondent submitted that she decided to resign and therefore was not available to participate any further in the investigation.
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Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
Disputes under section 13 of the Industrial Relations Act 1969 should generally only be referred to the WRC when all internal efforts to resolve the dispute have been exhausted.
In this regard, it is the Employer’s case that the Worker’s dispute is not properly before the Workplace Relations Commission for investigation on the basis that internal mechanisms and complaints procedure available to the Worker’s dispute were only briefly availed of and were by no means exhausted by the Worker.
The very essence of my role as an investigator of industrial disputes is that both parties must be aware of a dispute being in existence in the first place so that I can find a fair resolution.
In this regard, I have no doubt that the Worker had a number of issues related to her employment with a particular staff member, but she did not allow her Employer reasonable time to investigate the matter through the grievance procedure, during her employment before she resigned.
Moreover, on this note, I am satisfied that the Employer had extensive procedures, both informal and formal, as well as a comprehensive step-by-step grievance procedure.
In the Industrial Relations arena, the WRC should not be the first preference for a Worker to submit disputes of this nature.
In the case to hand the Worker chose not to exhaust the internal procedures prior to referring the case to the WRC.
In normal circumstances the WRC would recommend that the Worker return to the internal grievance procedure to process her complaints.
However, as the Worker has now resigned her position there is no merit in doing that.
I am guided in my recommendation also by a case in relation to Bronagh Whelan v Glana Controlled Hygiene Limited in which while the Adjudicator accepted the Complainant allegations about inappropriate behaviour carried out by the Complainants manager towards them, he found that the Complainant had not used or exhausted the company’s internal grievance procedure.
On further note I also must refer to the decision of The EAT in Reid v Oracle EMA Limited, UD1350/2014 which stated:
“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”
In the same case the Adjudicator concluded that, whilst there were aspects of the respondent’s behaviour that provided grounds for the complainant to believe it to be unreasonable, the action of the complainant in resigning without notice and not invoking the provisions of the Grievance Procedure was also unreasonable.
On this note a pre-requisite for lodging a claim under Section 13 is that a Worker must have raised the matter internally and sought that the matter dealt with by the Employer before referring it to the Workplace Relations Commission.
In this regard I note the Worker in this case did not apart from the initial stages of the complaint procedure utilise or exhaust prior to her resignation the Employers complaint procedure.
In closing, it is clear that the Worker in this case resigned from her position shortly after raising her grievance and I am satisfied the Worker in this case failed to exhaust all internal procedures open to her with her Employer before referring her dispute to the Workplace Relations Commission on the 05 January 2023 and ultimately resigning shortly after on the 09 January 2023 and so I cannot recommend in her favour.
Accordingly, I do not recommend in favour of the Worker.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
As I have stated above, I am satisfied that the Worker in this case failed to exhaust all internal procedures open to her before referring her dispute to the WRC and so I cannot recommend in her favour.
Dated: 12th October 2023.
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Grievance procedure. |