FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ALLIED IRISH BANK - AND - A WORKER (REPRESENTED BY DR BRIAN AYLWARD) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation IR20034/04/DI
BACKGROUND:
2. The worker's case involves a claim that the Bank did not carry out a proper investigation into the allegation of bullying and harassment she made against her superior. The Bank has maintained that at all times it conducted a fair and thorough investigation.
The worker joined AIB 24 Hour Banking in June, 1998, as Customer Service Adviser and she was twice promoted in 1999. In October, 2001, the worker requested a meeting with the head of 24 Hour Banking where she made her allegations of bullying and harassment by her immediate superior. (The worker has been on sick leave since before she brought the claim in October, 2001.) She claims that the Head of Banking assured her that she (the Head of Banking) would talk to the worker's superior. On the 23rd of October the worker lodged a formal written complaint giving details of the alleged bullying and harassment (supplied to the Court). (The worker has had a number of representatives during the course of her case). The worker was interviewed by a Senior Manager in November, 2001, and her superior was interviewed in December 2001. Her superior was interviewed a second time in February, 2002. In March, 2002, based on that Manager's investigation, the Bank's General Manager informed the worker of the outcome which found that bullying and harassment had not taken place. The worker appealed this finding on the 27th of March.
The worker submitted a letter of appeal on the 12th of July, 2002, and an interview took place in September, 2002. The outcome was that the Bank upheld the General Manager's findings. The worker wrote complaining about the investigation process and, as a result, a third party hearing with an Independent Arbitrator took place in May, 2003. The Independent Arbitrator withdrew from the case in July, 2003, but was again involved in a meeting with the Bank in January, 2004. The worker did not attend the hearing and claims that she was not made aware of its contents. The Independent Arbitrator issued his recommendation in February, 2004, and the worker subsequently referred her case to a Rights Commissioner. His recommendation is as follows:
The Bank has in place a set of procedures to deal with allegations of Bullying and Harassment made by employees. The Bank's procedures are fair and set out a process for carrying out fair and equitable investigations.
There is a significant conflict in the evidence given by the parties in this case. However, I do believe that the Bank fell short, albeit mainly due to inexperience, with aspects of their Procedures.
The Bank fell down in limiting the number of employees it interviewed during the investigation. In making this statement, I am not making any determination on whether the outcome of the worker's complaint would have been different if the Bank had extended the list of employees/former employees interviewed.
In maintaining the worker on a full salary to July 04, offering the worker a position where she would have no day-to-day contact with her immediate superior and ensuring that she was aware of the Bank's mentoring facilities, I believe are positive points in the Bank's favour.
Taking all matters into consideration I recommend that the worker be awarded compensation of €15,000 in respect of her complaint under the Industrial Relations Acts, 1969 to 2004. This award is subject to statutory deductions.
With regards to the worker's claim that she be provided with a job reference, this was not part of her original complaint under the Industrial Relations Acts 1969 to 2004. Therefore I am making no recommendation on this point.
(The worker and her immediate superior were named in the above recommendation.)
The Bank appealed the recommendation to the Labour Court on the 18th of February, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th of May 2005.
BANK'S ARGUMENTS:
4. (1) The Rights Commissioner found that the Bank's policies and procedures were fair and that they set out an appropriate process for properly carrying out investigations into bullying and harassment.
(2)The worker received extensive consideration through the initial investigation and the two appeal processes in regard to her well being, her representation and information needs. Any witnesses nominated by the worker were interviewed. Every complaint put forward by the worker was comprehensively investigated and considered.
(3) Throughout the process the worker remained on full pay and was only taken off pay when the independent third party phase broke down.
(4) The Bank accepted the decision of the independent third party process in February, 2004 although it did not suit the Bank's position.
(5) The Bank has consistently sought to engage with the worker to return to work. From the beginning it has assured her return would happen in consultation with her and in consideration of her needs.
WORKER'S ARGUMENTS:
3. (1) The Bank failed fundamentally in its duty of care to the worker in that it did not conduct a proper investigation of her complaint, including interviewing all the relevant people. The worker was obliged to leave her place of employment in September, 2001, because of the bullying and harassment she suffered.
(2) The Bank did not interview all the people it should have if a fair process was to have taken place. It also limited the investigation to just a selection of the complaints raised by the worker.
(3) The worker's position has never been that she would not return to work. The option of an alternative role was only made in March, 2004.
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court is satisfied that the investigation carried out by the Company into the bullying and harassment complaint was comprehensively investigated. The Court does not concur with the view that the investigation failed to interview appropriate witnesses. Having examined all the information made available, the Court is of the view that all nominated witnesses were interviewed. The Court does not accept that it would be prudent to interview persons not specifically nominated, who may potentially have information relevant to the complaint. To do so would not comply with the rules of natural justice.
The Court finds it particularly regrettable that the complainant did not avail of an informal procedure to address the difficulties she encountered with her immediate superior at an early stage. It is possible that matters could have been resolved with the minimum of conflict and stress for all concerned. The Court is of the view that the alleged perpetrator should have been informed that her behaviour was unacceptable to the complainant.
The Court notes that the Bank offered the complainant counselling services and gave her a commitment that, on her return to work, her work place would be free from harassment. The Court is of the view that this offer should now be renewed.
Accordingly, the Company's appeal is allowed and the Court overturns the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th July, 2005______________________
CON/DHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.