ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001012

Dispute for Resolution:

Date of Adjudication Hearing: 21st April 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaint(s)/dispute(s) 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 evidence relevant to the dispute.

Summary of Trade Union Case:

The Trade Union said that they are seeking financial compensation for the Complainant from the Respondent for their failure to comply with their own Grievance and Disciplinary procedures.   Due to the failure of the Respondent to adhere to the timeframe laid down in their policy document the Complainant has suffered emotionally, has had to deal with unwarranted behaviour from colleagues and has suffered bouts of work related stress.

The Complainant commenced employment with the Respondent as a Tester in 1994 and is a Training Officer since 2000.

During a Motorcycle Training Course in June 2012 in the named Training Centre the Complainant reported a named colleague for alleged bullying and this was verbally reported to the Supervisor in that Centre.   The Supervisor informed the Complainant that he was the 5^th person that day that had complained about the named colleague’s alleged bullying behaviour in the Centre that morning and further said he could not act upon these allegations unless they were put in writing and if he received a written complaint he would pursue it.

The Complainant then lodged the complaint to the Chief Tester, who was also in the Centre that day.   At the time the Complainant spoke with the Chief Tester on the matter he was accompanied by a named colleague, the Chief Tester said that another employee had also made a complaint and by afternoon he had received numerous complaints.   The Complainant was reluctant to put the matter in writing as it was his view that this was not in line with the Grievance Procedure in place at the time; but nevertheless in did so.   On 29^th June 2012, both the Chief Tester and the Centre Supervisor raised concerns about the possible bullying behaviour in the named Centre.

On 23^rd July 2012, the Complainant responded in writing to a complaint made by the alleged perpetrator concerning a harmless incident on a motorcycle course that he had been conducting.   In his response the Complainant stated the reporting by the alleged perpetrator was unnecessary and mischievous, but was in keeping with the congoing bullying manner the alleged perpetrator directed towards the Complainant and his colleagues.   The Complainant then lodged his own written complaint against the alleged perpetrator, hoping the matter would dealt with for all concerned.

Following the lodgement of his complaint the Human Resource Unit requested the Chief Tester to interview the Complainant concerning his bullying allegation, which took place on 2^nd August 2012.   The outcome of this process was a recommendation for an independent investigation.

On 21^st September 2012, 5 days after interviewing the Complainant the Chief Tester interviewed the alleged perpetrator and the Chief Tester lodged his Report on 30^th October 2012, 40 days after the interview with the alleged perpetrator.

The Chief Tester informed the Complainant that the Respondent were in the process of requesting a named independent person to investigate the matters and that there would be two investigations; one concerning his bullying complaint against the alleged perpetrator and another concerning all employees in the named Centre to include visitors to that Centre.

On 28^th October 2012, the Complainant emailed the Chief Tester expressing his dissatisfaction at the way the complaint had been handled and enquired as to when the Independent Investigation would be commencing.   The Chief Tester responded the following day stating that his only role in the matter was in conducting the interviews with both parties and submitting his Report in that respect.

On 6th December 2012, the Complainant emailed a named Director of the Respondent seeking his assistance on the matter.   In his response on 9^th December 2012, the named Director stated: “following discussions on the matter with Human Resources and the Head of Driver Testing they were considering whether mediation would resolve the issues”   The Complainant’s immediate response to the offer of mediation was positive.  

The Trade Union said Section 7.8.1 of the Grievance and Disciplinary Procedure states:

“If the Personnel Officer considers that the matter is appropriate for mediation, she or he should write to both parties within 10 working days of receiving the complaint, outlining the procedures for mediation.”

The Trade Union said this offer of mediation was made 4 months later.

During the following few weeks the Complainant had some discussions with the Head of Testing and he was informed that she could only deal with his complainant at local level, and she would not accept that his complaint was formal even though he had put the complaint in writing in accordance with the relevant sections of the Grievance and Disciplinary Procedures, namely 7.1 and 7.7.1.

On 12^th March 2013, the Head of Testing formally referred the matter to Human Resources and on 17^th April 2013 the Complainant was informed by the Director of Corporate Affairs that he had appointed a named independent human resources person as the Investigator.

The Independent Investigator then interviewed the Complainant on 8^th May 2013 and the alleged perpetrator on 17^th May 2013.   On 10^th October 2013, the Independent Investigator issued his Report, 5 months after his investigation began.   The Trade Union quoted Section 7.9.20 of the Grievance and Disciplinary Procedures provides that: “Every effort should be made to complete an investigation within a 3 month period from the appointment of the Investigator.”

The Trade Union said the Investigation upheld the Complainant’s complaint and it stated that the Complainant was justified in making the complaint.   The Report went on to state: “there is a small group of people who were prone to making comments of a smart and undermining nature to and at other people on a consistent basis.”

The Trade Union said the Independent Investigator issued his Report to the Human Resources Department on 10^th October 2013, but unfortunately the Complainant was never informed of the Report or the outcome of the Investigation.  

The Trade Union said the alleged perpetrator showed a copy of the Complainant’s interview with the Independent Investigator to several employees, including other parties to the Investigation, which they said was in breach of 7.9.7 of the Grievance and Disciplinary Procedure.  

The Complainant wrote to the Personnel Officer on 29^th October 2013, seeking an update on the position, but he received no reply.   He again wrote on 13^th November 2014 and he received a reply on 14^th November stating that a meeting was due to take place between the alleged perpetrator on 19^th November 2013.   The Trade Union said this was 39 days after receiving the Independent Investigator’s Report.  

The Trade Union said the meeting was deferred to 12^th December, so that a named Manager could be in attendance at this Meeting and this was then deferred to 14^th January 2014, 3 months after the issuing of the Independent Investigator’s Report.

On 13^th February 2014, the Complainant informed the Head of Testing that he was requesting “a review of procedures.”   The Trade Union quoted from the Grievance and Disciplinary Procedure in relation to Review of Procedures.

A named person who acts as a Consultant for the Respondent was appointed to conduct a review of procedures, and the Trade Union said their agreement to this appointment was not sought.   This person issued his Report on 10^th August 2014 and he stated:

“Procedures contained in the “A Positive Working Environment” policy were not properly followed in the following instances:

The Investigation took longer than the recommended 3 months and the Investigating Officer did not comply with the procedures by failing to inform all parties that he was extending the deadline.   The Investing Officer’s Report was forwarded to the parties concerned by email on 10^th October, with no indication that they were entitled to comment on the Report as required in the policy.

There is no record of HR advising any of the parties of the outcome of the Investigation as provided for in the policy.   Copies of witness statements were not sent to the parties concerned for comment.   The Report was completed on 10/8/14.”

The Trade Union said there is no record of Human Resources informing any of the parties of the outcome of the investigation as provided for in the Grievance and Disciplinary Procedures.

The Trade Union said that despite having requested this review, the Complainant did not receive a copy until 15^th September 2014; 4 weeks after the alleged perpetrator had received a copy.

The Trade Union said that the Complainant received no further communication on the matter until he was asked to attend a meeting in a named location in June 2015, with the Head of Testing, the Chief Tester and his Supervisor.   At this Meeting the Head of Testing provided an update on the matter and she stated that the news was grave and that due to the delay in the process and on foot of external advice received by the Respondent a decision was made not to take any disciplinary action against the perpetrator.   The Complainant was confused and devastated as to how an employer could not discipline an employee who had been found guilty of bullying, following a full investigation.   The Complainant went into a formal process in good faith and under the direction and guidance of senior management of the Respondent.   The Head of Testing apologised to the Complainant for what had happened to him.

A named Director of the Respondent invited the Complainant to meet with the CEO.   The CEO was accompanied at the Meeting by the Head of Testing.   The Complainant was of the view that this was an open and honest meeting and addressed some of his concerns he also appreciated the time taken by the CEO to meet with him and received an apology and an honest summary of why the case had failed.   At this Meeting the Complainant was also informed that there would be an anti-bullying training course run for all testers and that all senior managers would attend each course.

Following reflection of the Meeting with the CEO and the fact that she had pointed out that he had gone through the process without any support, he contacted his Trade Union.   After consideration he invoked the Grievance Procedure against the Respondent.

The Trade Union said the procedure requires a meeting to take place within 7 days from the date of the notice, but the first meeting did not take place for 32 days.

A named person was appointed by the Respondent to conduct the investigation and 7 weeks after the process started a Report was issued.

The Trade Union said that both the Report and the letter from the named Director stated that the Respondent “had taken steps to ensure that this does not happy again and ensuring that (the Complainant) would not have to work directly with the (Perpetrator).   The letter also stated that he would have support through the Head of Testing, the Human Resources Department and the Employee Assistance Programme.   The Respondent is also in the process of implementing training for employees on appropriate conduct in the workplace and that such supports will continue and training and policies will be refreshed on a regular basis. The Head of Testing has expressed her concern and offered to help the Complainant in any way she can.

The Trade Union said that it is the right of all employees’ to a positive working environment that is free from harassment and bullying.   It is also the right of employees’ to fair and prompt procedures in dealing with allegations of bullying.   The Trade Union said that neither of these rights were afforded to the Complainant throughout the whole process.   The Trade Union submitted that neither fair procedures or due diligence was applied by the Respondent in this case.

The Trade Union said that all of the above has unnecessarily arisen as result of the failure of the Respondent to implement policies, practices and procedures that were in place to deal with such matters.   The Trade Union said the Complainant has been left in a very isolated and vulnerable situation for doing the right thing, his confidence has been shaken and his sleeping patterns disturbed, while he feels the guilty party has been allowed to continue as before.

For all of the foregoing reasons the Trade Union and the Complainant sought that the claim be upheld and that he be awarded suitable financial compensation.

Summary of Respondent’s Position:  

The Respondent said the Complainant has employed by them since 1994 and he is a Tester presently based in a named location.

In July 2012, the Complainant submitted a complaint by email to the Chief Tester, concerning his alleged experience of inappropriate behaviour directed at him by a named colleague.   Following receipt of the complaint a Meeting between the Complainant and the Chief Tester took place on 2^nd August 2012, to discuss the complaint.   Subsequent to this Meeting an internal process was commenced in which the two parties were met with specifically in relation to the complaint.  

The Respondent said that numerous attempts were made by them during November and December 2012 and January and February 2013 to involve both parties in a mediation process, but this was unsuccessful.

Following this a formal investigation process was invoked in March 2013 and the services of an external investigator was engaged to conduct an Investigation.   The Complainant was informed of this in writing on 17^th April 2013.

The Respondent said that following a process that involved meetings with both parties as well other employees, a Report was issued in October 2013 and was provided to the Complainant.

Following the issuing of the Report, the Respondent engaged with the Trade Union around the findings of the Investigation and concerns were expressed by the Trade Union in relation to the procedures followed and shortcomings in the execution of them.   On foot of those concerns, the Respondent undertook to review the procedures used and a review of procedures and processes used was conducted by a named external party as provided for in procedures.  

This Report was issued to the Complainant on 15^th September 2014.   The Report stated that while shortcomings did exist in the execution of the procedure, based on the evidence and on the balance of probabilities the findings of the initial Report would not have been altered.

In August 2015, a formal grievance was submitted by the Complainant stating his continuing dissatisfaction with at how matters had been managed by the Respondent.   The Respondent responded to this grievance on having reviewed that matters and stated the options available to the Complainant should he be not be satisfied with the outcome.

The Respondent said that a number of matters arose in the management of the original complaint that they acknowledge could have been handled more appropriately.   However the Respondent contends that numerous attempts were made by them to engage both the Complainant and the other party in an informal mediation process.   The Respondent offered mediation at various stages to both parties, but the Respondent could not achieve full consensus on its value and merit.

The Respondent said that the formal investigation process was launched on receipt of a formal complaint in writing to HR by the Complainant.   The Respondent said that as detailed in the Independent Report the turnaround in dealing with this complaint, while not within the 20 days as stipulated, did not exceed 26 days, and this cannot be deemed as unreasonable, considering the time of year involved.

The Respondent said they acknowledge that the process, once commenced, did not complete as per the assigned time limit of 3 months and that particular aspect of the investigation process is unfortunate as are the shortcomings identified in the independent review.  

The Respondent said that it is important to note that the initial Report found in the Complainant’s favour.

The Complainant expressed dissatisfaction at how the Respondent managed the outcome of this Report and this was addressed in a letter from a named director to him of 15^th July 2015.

The Respondent said that they handled the Complainant’s grievance expediently through their Grievance Procedure with a letter stating the decision on 15^th October 2015.

The Respondent regrets that this Adjudication Hearing has had to convene today to consider a claim from an employee that they are suffering consequences following a process that they acknowledge did take too long to bring to a conclusion.   The Respondent said that they have not been formally informed of what these consequences are and welcome this opportunity to have these aired.

The Respondent said that while they acknowledge it has been found that their procedural process in managing the Complaint initially made verbally and followed up in writing took longer than prescribed for, they do refute his claim that they forced him into a formal process.   The Respondent said they actively engaged with him hoping to invoke informal mediation.   However this proved unsuccessful as consensus from both parties could not be reached on the merits of mediation.

The formal process was invoked and this process when finalised presented the Respondent with difficulties as it was flawed in aspects of its procedural process.

The Respondent said that at all times during this process, the communication channels remained open between the Complainant and his line management including emails, telephone calls as well as meetings at mutually agreed locations.

The Respondent said that Complainant was offered a promotional position in September 2015 and he refused this offer, verbally informing his Manager that a move to Cork did not suit his personal circumstances.   The Respondent said that they continue to support the Complainant in his role and can appreciate his frustration at the procedural shortcomings with regard to the investigation undertaken.

The Respondent said that reference has been made to financial recompense as being the only option available to the Complainant and the Respondent has real difficulty in accepting this in any format.

The Respondent said that they are actively engaging with trade unions around policy and procedural development especially in the area of ‘Dignity at Work’ and is proposing organisation wide training in the third quarter of 2016, once the new procedure has been agreed.   The Respondent said that they are very aware of their duty to employees to ensure robust procedures are in place and will continue to strive for best practice in these areas.   The Respondent again regrets that the Complainant has experienced poor procedural execution in the investigating of his complainant; however the Respondent at no time intentionally set out to cause the Complainant to suffer any type of consequence.

Based on the foregoing and the facts and circumstances of the case the Respondent sought that the claim should be rejected.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13(3) of the Industrial Relations Acts 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

There can be no doubt that the matter was not dealt with in a timely fashion by the Respondent.   At every stage in the process the matter was not dealt within the time limits laid down for dealing with these matters; and none of the time limits were particularly onerous and should have been met by the Respondent without any real hardship.

In this respect I note the following; the initial complaint was made in late July 2012 and confirmed again in early August 2012.   The result of the initial investigation was issued on 10^th October 2013.   This means that this part of the process took one year and two months!   This is an extraordinarily long period for such matters to take to be dealt with and no explanation, credible or otherwise, was advanced to me for such a delay, which I note is more than four times that stated in the Grievance and Disciplinary Procedure as the period in which such matters should be concluded.   There was nothing particularly complex or complicated about the complaint that would justify such a period of delay in dealing with the matter. I cannot accept the submissions of the Respondent that it took 4 months, November, December 2013, January and February 2013, to conclude that mediation was not feasible, it would or should have been obvious immediately and certainly within two weeks whether or not mediation was a feasible option.   The inordinate delay in dealing with the matter was not without consequences; because of the time lapse involved the Respondent, quite correctly, decided that no action could be taken against the employee found to have been guilty of bullying the Complainant.   In addition it dragged out the matter inordinately leaving the Complainant is suspense or ‘limbo’.

The remainder of the process could not correct this and even it could not be said to have been dealt with in a timely fashion.

The lengthy delays in dealing with the matter by the Respondent were lamentable and deplorable and were very unfair to the Complainant.

However I also note that the Respondent did in fact make very strenuous efforts to redress the mistakes made by them.   The Respondent arranged a meeting for the Complainant with the CEO and the Head of Testing.   The Complainant acknowledge that at this Meeting, the CEO and the Head of Testing afforded him a genuine apology for what had happened and they also provided him with a honest summary of why the problems had occurred.   The Complainant said that he was favourably impressed by both the honesty and the genuineness of the approach of the CEO and the Head of Testing and the fact that the CEO took the time to meet him and express her genuine concern with what had occurred to him.

I am satisfied that this was a genuine effort made by the Respondent to make redress as far as possible and is a matter that should be taken into account in any recommendation issued by me.  

Nevertheless I have concluded that the inordinate delay in dealing with the matter was unfair to the Complainant and accordingly he is entitled to redress for this failure on the part of the Respondent.

As a full and final settlement of the matter I recommend that the Respondent pay the Complainant compensation in the sum of €5,000.00c for their failure to deal with his complaint in a timely fashion

For the avoidance of doubt I wish to confirm that this sum is not wages or arrears of wages, but rather compensation to the Complainant for the way the matter was dealt with by the Respondent.

Date: 6^th July 2016