FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COMANS WHOLESALE LIMITED - AND - A WORKER (REPRESENTED BY DOMINIC WILKINSON B.L. AS INSTRUCTED BY WARREN PARKES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner R-082752-IR-09
BACKGROUND:
2. The worker commenced employment with the Company on 20th August, 2007, as an Accounts Receivable Assistant on a 6-month probationary period. She reported to a Line Manager. The worker's case is as follows:
On 21st July, 2008, the worker met with the Company's Financial Controller - Mr. G - and outlined concerns that she had with her Line Manager; effectively she made a complaint/grievance against her. On 31st July, 2008, the worker met with Mr. G and her Line Manager where she was informed that her role was to be adjusted to include additional and more responsible duties. At the same time she received a letter telling her that she was to be made permanent. There was no reference to her complaint at the meeting or in the letter. On the 15th October, 2008, at a meeting with Mr. G and her Line Manager the worker was informed that they were not happy with her work performance over the previous year. The worker was upset by the meeting as she was not informed as to the nature of the problem.
Between the meetings of 31st July and 15th October, 2008, the working relationship with the Line Manager had improved somewhat but it deteriorated further after the latter meeting. On 4th February, 2009, the worker was informed at a meeting with the Line Manager and Mr. G that she was to be made redundant. The worker's case is that due to the failure of her employer to address her concerns about her Line Manager the worker's health was affected and she was diagnosed as suffering with stress and anxiety.
The worker referred her case to a Rights Commissioner and his findings and recommendation are as follows:
"I have carefully considered the evidence and the submissions made and I have reached the following conclusions.
The matter complained of by the claimant would, if proven, constitute bullying and harassment of a most serious nature - and I have no doubt that the claimant genuinely and sincerely believes that she was a victim of bullying by her Line Manager.
As noted above there was direct conflict between the evidence of the parties, which could not be reconciled, and accordingly, I have had to make my decisions on 'the balance of probabilities'
It is not a dispute that the detailed allegations made available to the hearing were not made available to the employer by the claimant during her employment (or indeed prior to being provided to the Rights Commissioner Service) and no explanation for this was offered at the hearing.
The respondent describes what occurred at the meeting between the Claimant and the Financial Controller as that the claimant "made comments" or "made allegations" in relation to bullying (which they say was only mentioned once). The claimant, on the other hand says that she made "an official complaint". The claimant in her direct evidence stated that she said to the Financial Controller "I feel I am being bullied" and "bullyboy tactics are being used by (the Line Manager)l". It is not in dispute that the claimant did not raise the matter in any other way with the respondent.
It is clear and not in dispute that the claimant never made a 'Formal Complaint' as defined, not did she raise a formal grievance.
However, the question arises as to whether or not the claimant made an 'Informal Complaint' as defined. I am not satisfied that even what the claimant describes in her own direct evidence could reasonably be considered to be a complaint of bullying and harassment, requiring the employer to instigate the procedures as laid down in the various Codes of Practice.
A complaint of bullying and harassment is a serious matter for an employer, a complainant and the alleged perpetrator, with potentially serious consequences for all three parties. An emptier is only entitled to act where a specified and unambiguous complaint has been made - and I am not satisfied that this was the case in this instance. Given this it follows that I must find that the claimant did not make a complaint of bullying and harassment to her employer.
In addition I do not accept the claimant's evidence that she told the Financial Controller at the meeting held on 21st July 2008, all of the allegations she made at the hearing, apart from the fact that the Financial Controller denies this, I do not believe that it would be possible to do this at the meeting as described by both parties ( or indeed in the length of time that meeting lasted, bearing in mind the extent of the allegations).
I further note that the claimant did not follow up the matter in any way with the Financial Controller, not even to ask him the simple question what is the status of my 'complaint' or what is happening, or are you investigating my 'complaint'? - which is difficult to understand given the seriousness of the matters as described by the claimant, and the reason for this omission given in her own submission lacks credibility.
In all the circumstances I accept that it was reasonable for the employer to conclude as they did and on that basis to act as they did.
Accordingly, I must find that the Complaint is not well founded and it is rejected".
(The Line Manager was named in the above recommendation).
The worker appealed the recommendation to the Labour Court on the 19th August, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th January, 2011. The Company did not attend the hearing or forward a written submission.
WORKER'S ARGUMENTS:
3. 1. The worker believes that she was bullied by her Line Manager. The 2007 Code of Practice obliges employers to implement an effective policy on bullying at work but that did not happen in this case. As a result the worker's health was adversely affected.
2. The worker was told on 31st July, 2008, that she was to be given added responsibility yet in October, 2008, she was informed that the Company was unhappy with her performance in the previous year. Notwithstanding this she was given a bonus in December, 2008.
DECISION:
The matter before the Court concerns an appeal by the worker of a Rights Commissioner’s Decision which found against her claim that the employer failed to deal adequately or at all with a complaint of bullying she made against her Line Manager.
The employer did not attend and was not represented at the hearing.
Mr. Dominic Wilkinson B.L. instructed by Warren Parkes, Solicitor on behalf of the Appellant, stated that the employer failed to comply with either the informal and/or formal procedural requirements as set out in the 2007 Code of Practice on Bullying and Harassment in the Workplace, following a complaint made on 21st July 2008 to Mr. G., Financial Controller.
The Appellant told the Court that following the making of the complaint Mr.G spoke to the alleged perpetrator. However, she told the Court that no further action was taken, Mr. G. did not report back to her and that there was no monitoring of the situation going forward. She stated that while matters did improve for a while, there were further incidents from 20th October, 2008, where she felt she was belittled and intimidated by the behaviour of her Line Manager. The Appellant submitted that due to the employer’s failure to progress her complaint in the first place, she lost confidence in its ability to deal with it adequately or at all.
On the uncontradicted evidence of the Appellant, the Court is of the view that while the employer made some preliminary attempts to deal with the complaint made, its failure to follow up on the complaint and to instigate any procedures to ensure that the behaviour was not repeated is a fundamental flaw on the part of the employer.
The Court believes that compensation is warranted in this case and decides that the employer should pay the Appellant compensation for the difficulties she encountered as a result. The Court quantifies the compensation in the amount of €2,500 as fair and reasonable (this award does not include any element of loss of earnings).
The appeal is allowed and the Recommendation of the Rights Commissioner is set aside accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th January, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.