ADJUDICATION OFFICER RECOMMENDATION/DECISION

Adjudication Recommendation/Decision Reference: ADJ-00000075

Dispute/Complaint for Resolution:

Date of Adjudication Hearing: 04/11/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and Section 41(4) of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute and complaint received by the Workplace Relations Commission (hereinafter ‘WRC’) on 7^th October 2015 and gave the Parties an opportunity to be heard and to present any relevant evidence. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. This matter had to be adjourned on a number of prior dates for various reasons but proceeded to a full hearing on 4^th November 2016.  Both Parties were represented. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration when coming to this recommendation/decision.

Complainant’s Submission and Presentation:

The Complainant seeks resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to his suspension from work pending an investigation and in particular, the lifting of same. At the outset, his Union Representative confirmed that his complaint under Section 7 of the Terms of Employment (Information) Act 1994 was being withdrawn as the Respondent has now complied with its request to furnish him with details of the terms and conditions of his employment.

The Complainant’s Trade Union Representative outlined the background to this dispute. The Complainant had been employed by the Respondent for over thirty years. In the lead-up to the incidents giving rise to his suspension from employment on 14^th May 2015, he had informally raised concerns about bullying in the workplace with senior management in his area which were not being addressed. It was submitted that unbeknownst to him, local management had been in contact with the then acting Director of Employee Relations, Mr AB who gave them advice on how to monitor and manage him. Mr AB had also cancelled a meeting with the Complainant to discuss these matters and he was notified of a ‘duty of care’ referral by HR to the CMO (Company Medical Officer). When he sought an explanation for this referral, on 11^th May 2015, Mr AB gave him a clear warning to attend the appointment or face disciplinary action up to possible dismissal. He contacted the CEO to complain about this threat. On 12^th May 2015, he also went to deliver a letter personally to Mr AB, outlining that his behaviour was unacceptable and being the appropriate step under the Company Policy for dealing with bullying and harassment. He was asked to leave the building and proceeded to do so escorted by Mr CD, Head of Employee Relations. He was then escorted from the building by security on the instructions of Mr AB’s personal secretary, Ms EF when he had already been leaving the building. Arising from this incident, Mr AB and Ms EF made complaints against the Complainant which are currently subject to a formal investigation under the Respondent’s Workplace Charter by a third party appointed by the Respondent. On 14^th May 2015, Mr CD came to the Complainant’s place of work and publicly suspended him on pay pending the outcome of the investigation.

The Complainant makes various complaints about his suspension and seeks to have same lifted. In particular, he contends that (1) Mr CD suspended him publicly in front of other employees, (2) he was given no opportunity to address the complaints prior to his suspension, (3) the calling of security in relation to the incident in question was unnecessary and not a valid reason for his suspension, (4) Mr CD should not have made the decision to suspend him as a conflict of interest arises in so far as his direct line manager, Mr AB is the main complainant and (5) as the main complainant, Mr AB has since left his employment his continuing suspension cannot be justified. At this stage, the Complainant has been suspended for over 18 months and the investigation is still ongoing. It was submitted that his ongoing suspension is causing him considerable stress, is adversely affecting his reputation and is putting him at a financial disadvantage in respect of performance related bonus pay. He has been certified as fit to return to work by the CMO following an examination on 14^th June 2016, who also noted that resolution of this matter will alleviate any stress. The Complainant also takes issue with the length of time the investigation has taken and he attributes the delay to difficulties obtaining documentation and CCTV relevant to his defence from the Respondent. He contended that his interview with the investigation board cannot be completed until he is in receipt of same. Further to making several requests under the Data Protection Acts, he has also submitted a complaint to the Data Protection Commissioner which is pending conclusion. A further issue was raised regarding the Respondent writing directly to his home address including to an incorrect address rather than sending documentation to his Union Representative as previously requested.

When the Complainant and his Union Representative on his behalf were questioned, they confirmed that they had no difficulty with the investigation board or the manner in which it had conducted the investigation to date. When I enquired as to what documentation was still outstanding and holding up the investigation, they referred to documents that had not yet formally been requested and conceded that at this stage, most of what has been requested has been furnished albeit that it had been a drawn out process. They confirmed that an unpixilated copy of CCTV footage was still being sought but Data Protection issues had been raised by the Respondent in circumstances where the pixilation was used to disguise other members of staff. The Solicitor for the Respondent also questioned who was on record for the Complainant as both the Union Representative and a firm of Solicitors had been acting on his behalf and this had led to communication difficulties and delays in the process. The Union Representative confirmed that he should be the only point of contact in relation to this matter in the future. It was also put to the Complainant that the incident subject to the investigation was also the subject of criminal proceedings. The Parties were in disagreement as to whether the matter was for hearing or just for mention before the District Court the following week but both agreed that there was no certainty as to when these proceedings would conclude.

Respondent’s Submission and Presentation:

The Respondent seeks to have this dispute dismissed on the basis that the Complainant has raised no issue with the integrity of the procedures adopted by the investigation board appointed in question and had signed his agreement to the terms of reference. In this respect, reliance is placed on the Labour Court decision in Bord Gais Eireann -v- A Worker AD1377 which stated: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

The Respondent also refutes the complaints made by the Complainant regarding the manner in which he was suspended and contends that he was suspended on 14^th May 2015 in accordance with the Company Policy in circumstances justifying same and where safety concerns arose from his behaviour on 11^th, 12^th & 13^th May 2015. In this respect, the events giving rise to the Complainant’s suspension were summarised in its submission. They had included various interactions with members of the HR Department resulting in the Complainant being escorted and removed from the building by security on 12^th May 2015. Mr CD denied that he had suspended the Complainant in the public manner alleged and contended that he had been suspended in compliance with its Policy, being so informed orally in the presence of his manager in the first instance and then immediately issued with written confirmation of same in the form of a letter dated 14^th May 2015. The Respondent also refutes the assertion that Mr CD had a conflict of interest as he had reported to the main complainant at the time, the acting Director of Employee Relations, Mr AB. Mr CD’s only role in relation to this matter is liaison with the investigation board. It was also noted that following the alleged incident on 12^th May 2015 primarily giving rise to the complaints, on 13^th May 2015 the Complainant had attempted to make further contact with Mr AB notwithstanding a Garda warning not to make any contact with him. It was further submitted that his continued suspension is justified in circumstances where the allegations giving rise to these complaints have also been subject to an investigation by An Garda Síochána giving rise to criminal proceedings before the District Court.

Furthermore, the Solicitor for the Respondent submitted that it would be premature for the WRC to make a recommendation in relation to an internal process (1) which remains ongoing, (2) which has not yet resulted in any findings and (3) in respect of which there are no procedural issues or deficiencies alleged. It was also contended that the Complainant and/or his Representatives had contributed to the delay in the investigation with drawn out requests for documentation and CCTV which was of little relevance to and/or assistance to his defence. To date, the Complainant had refused to make himself available for the investigation board to complete his interview despite the fact that all requested documentation has been furnished. The matter has further been complicated by the fact that the Complainant has been represented by both his Union Representative and a firm of Solicitors in relation to this matter leading to communication difficulties. It is also denied that the he is at a financial detriment owing to his ongoing suspension. Upon my enquiry, ways of addressing the Data Protection issues so as to remove the pixilation of the CCTV footage were mooted with a view to moving the matter forward. It was also confirmed that whilst Mr AB has since left his employment with the Respondent, the other complainant, Ms EF still works for the Respondent.

Reasons & Findings:

Firstly, I agree that Bord Gais Eireann -v- A Worker AD1377 as outlined above sets out my remit in relation to disputes regarding internal investigations brought under Section 13 of the Industrial Relations Act 1969. Therefore it is not my function to form a view on the merits of the complaints giving rise to the investigation in question but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. In this respect, I have examined the manner in which the Complainant was suspended in the instant case and am satisfied that it was in conformity with the Company Policy which provides: “An employee will be relieved of his/her duties and suspended when such action is considered necessary to protect the interests of the Company or the employee himself/herself. Such action will not be taken as a disciplinary measure.” Whilst there is no requirement to provide the employee concerned with an opportunity to address the complaints beforehand, this does not necessarily mean that such a step would not be proper in certain situations. However, in the instant case, the Complainant was suspended after he had attempted to contact the main complainant, Mr AB, notwithstanding a Garda warning to desist from same.

Furthermore, I do not consider that Mr CD had a conflict of interest in terms of making the decision to suspend the Complainant simply by virtue of the fact that he reported to the main complainant Mr AB, where there is no other evidence to suggest such a conflict. The incident giving rise to the complaints against the Complainant just happened to have occurred in the HR Department and Mr CD was simply doing his job in his capacity as Head of Employee Relations in accordance with the Company Policy. Therefore I cannot find any procedural deficiencies that would justify my interference with Mr CD’s decision to suspend the Complainant or indeed his ongoing suspension, particularly in circumstances where there are related criminal proceedings before the District Court. It is important to note as per the Company Policy that a suspension is in no way intended as a disciplinary measure against the Complainant and should not be construed as a predetermination of the complaints against him. Indeed these complaints are still at an investigation stage, the Complainant is entitled to due process and has not been subject to any disciplinary process or action to date. He is also entitled to the presumption of innocence in relation to any criminal proceedings.

Whilst not seeking to lay blame with either Party, I consider the delays with the investigation of the complaints in this case to be wholly undesirable. In this respect, I was furnished with copious inter partes correspondence in relation to documentation and CCTV being sought by the Complainant from the Respondent and other related issues. I note that various reasons for the delays have been asserted by both Parties. The Complainant had initially relied upon general Data Protection requests made on 11^th May 2015 and 15^th May 2015 to obtain documentation/CCTV for the purposes of defending himself in relation to the complaints against him. This had led to a lack of clarity as to precisely what was being sought and at a previous hearing of this matter on 16^th February 2015, I recommended that an itemised list of the documentation/CCTV required by the Complainant be furnished to the Respondent. Unfortunately a drawn out process regarding such disclosure ensued and what should be a relatively a straightforward investigation into a finite number of incidents over a three day period (albeit with a history) has become an unnecessarily complicated process. The investigation process is in train now and will have to be brought to a conclusion in accordance with the terms of reference. I note that there is no complaint in relation to procedures adopted by the investigation board to date and no intervention is sought in relation to same. At this stage, it is incumbent on both Parties to do all within their power to bring this matter to a speedy conclusion.

Decision/Recommendation:

I duly note that the Complainant has withdrawn his complaint under Section 7 of the Terms of Employment (Information) Act 1994, Complaint Reference Number CA-00000122-002. In relation to the dispute under Section 13 of the Industrial Relations Act 1969, Dispute Reference Number CA-00000122-001, I do not propose making any recommendation in relation to the ongoing suspension of the Complainant for the reasons outlined above. I do not propose making any other recommendations other than recommending that any issues regarding the investigation of these complaints including any inadequacies in the documentation/CCTV furnished by the Respondent, should properly be addressed to the investigation board appointed to deal with such matters. Finally, I would urge both Parties to do all within their power to bring this investigation to a conclusion as expeditiously as possible as being in the best interests of all concerned.

Dated:   21^st December 2016