ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00000441

Complaints for Resolution:

Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 15/09/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 13 of the Industrial Relations Act, 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant was employed as a Manager from 10^th April 2011 to 17^th June 2016. She was paid €1,058.40 per week. She has claimed that she was bullied at work and the investigation into her complaints was flawed and she was denied fair procedure and natural justice.

Complainant’s Submission and Presentation:

The Complainant made a rather lengthy written submission and it may be summarised as follows:

1. Terms of Reference were not agreed in advance

2. The role as conduit of the Chair of the Board was unclear.

3. No minutes of meetings were provided by the Respondent, she didn’t get transcripts of the Chief Executive and Colleague’s comments.

4. There was no right of proper representation; she was not allowed to speak at the investigation hearing.

5. No witnesses were interviewed

6. There was no right of appeal

7. The Report Findings did not address the allegations

8. The investigation was flawed

The Chair of the Investigation Panel made comments that conveyed that the Complainant was at fault. She declined team building as it was deemed not appropriate. Facilitation was offered but it was a group thing. She denies that she resisted change; in fact she championed change in the organisation. The Chief Executive made unilateral changes to her contract.

The Complainant is seeking that the report is deemed flawed and that she is paid compensation for the failure by the Respondent to follow correct procedures.

Respondent’s Submission and Presentation

The Respondent’s grievance procedure was in operation at the time the Complainant lodged her complaint. This procedure specifically dealt with grievances with the Chief Executive as was the case here. The Complainant alleged that she was bullied by the Chief Executive and a colleague. At all material times the Complainant was represented by an HR Consultant. The Respondent paid the HR Consultant’s fees in respect of this representation to the value of €6,000. This demonstrates the equitable treatment afforded to the Complainant in relation to her grievance. The Complainant submitted written complaints against both the Chief Executive and the colleague. Both were given an opportunity to respond. These complaints were refuted by both persons. The Respondent appointed a three person panel to investigate the complaints. This panel was made up of volunteer board members. The Chair of the Board oversaw the investigation to ensure that the policy was adhered to. The Complaint was advised in writing of this. The panel completed its task and issued its report. The Complainant’s allegations were not upheld however a number of recommendations were made. The Complainant’s representative expressed her dissatisfaction with the report. The Chair of the Investigation responded to the issues raised and subsequently the matter was referred by the Complainant to the WRC on 4^th November 2015. After the Investigation Panel had concluded its work the Respondent appointed an external consultant to attempt to facilitate an improvement in the working relationships. However the Complainant decided to withdraw from the process in November 2015.

Specific responses were as follows

1) Terms of Reference

There was no formal document provided. This in itself does not make it a flawed investigation.

2) Chair of the Respondent’s Board involvement in the investigation

The Chair was a conduit only. The allegation of tick tacking between her and the investigation panel was irrelevant.

3) Representation

The Respondent had already received 200 pages of submissions from the representative. It is accepted that the representative was there to accompany the Complainant. The panel decided that it was necessary to hear from the Complainant only.

4) Witnesses not interviewed

There was copious documentation provided, over 200 pages in total. The panel did not feel the need to interview witnesses.

5) Report

The Respondent accepts that it is somewhat unorthodox in its lay out. But it made a finding of fact and issued recommendations to help improve the work situation.

6) Right of Appeal

The Complainant’s representative wrote to then Chair of the panel of Investigation. She did not appeal the report to the Chair of the Board. She appealed to the wrong person.

Overall the investigation was not flawed and there was no basis for compensation.

The Complainant left the employment on 17^th June 2016.

Issues for Decision:

The complaint of bullying will not be addressed in this decision

I am satisfied that matters were exhausted at local level before the matter was referred to the WRC thus allowing the matter to be adjudicated upon.

I note that the Respondent contributed €6,000 towards the cost of the Complainant’s representational costs.

I note that one party in particular made rather lengthy written submissions and did so during the investigation process as well.

It is prudent to be brief and concise when making submissions. It helps parties to be clear and succinct with their presentations.

I propose to address the specific issues raised at the hearing.

1) Terms of Reference

I note that there were no written terms of reference agreed prior to the commencement of the investigation.

I note that the Complainant or her representative did not raise this or object to it before the investigation.

I find that terms of reference brings clarity to the process and all parties are clear about what is happening and how it is happening. I find that the matter of the appeal should have been included in such a document.

I find that this was a mistake not to have written terms of reference. However I could not conclude that such an omission rendered the report flawed.

2) Role of the Chair of the Board acting as a conduit

I note that the Complainant or her representative did not object to the Chair having an overseeing role in the investigation when she was advised in writing when the Investigation Panel was set up.

However concerns were raised by the representative when it emerged that there was some communications between the parties referred by the Complainant’s representative as “tick tacking”.

I find that the Chair should not have had any involvement in the investigation as she would have been the obvious person that an appeal would be made to.

I find that this was an error of judgement.

I find that this has fairness of procedures implications.

3) No minutes of meetings were provided by the Respondent, she didn’t get transcripts of the Chief Executive and Colleague’s comments.

I find that it was wrong that the Complainant did not get copies of the Chief Executive and her Colleague’s responses to the allegations.

I find that this put the Complainant at a disadvantage.

I find that this has fairness of procedures implications.

4) There was no right of proper representation; she was not allowed to speak at the investigation hearing.

I note that the Complainant’s representative had been part of the complaint from the outset.

I find that the representative was not allowed to act as a representative at the investigation hearing.

I find that this was wrong.

I find that this has fairness of procedures implications.

5) No witnesses were interviewed

I note the Respondent’s position that it was deemed unnecessary as she had already submitted over 200 pages of written submissions.

I find it unusual that witnesses were not interviewed as they may have been able to corroborate or not the allegations.

I find that this was wrong.

I find that this has fairness of procedures implications.

6) There was no right of appeal

I note that there were no terms of reference.

I note that a letter was sent to the Chair of the Investigation Panel complaining about the outcome.

I find that this was in effect an appeal.

I find that the Complainant appealed the outcome to the wrong person.

I find it unusual that the Complainant and her representative would do such a thing where experience would dictate that the appeal to the Chair of the Board would be obvious and also given that the Chair had written to them to advise that she would oversee the process.

I find that the Complainant has no basis for such a complaint.

7) The Report Findings did not address the allegations

It is not my role to investigate the bullying complaint.

Despite my findings on the procedural matters above I did not find evidence that the investigation did not address the allegations.

I am satisfied that the allegations were addressed and they were not upheld. That is the prerogative of the Investigation panel.

I did not find the layout of the report had interfered with the task in hand.

I find that the panel had made findings of fact and had also issued recommendations to improve the workplace relations.

8) The investigation was flawed

I have found that there were procedural problems with how the investigation was carried out.

I have not found evidence that this rendered the decision on the substantive matter of bullying flawed.

Therefore I conclude that the investigation was flawed from a procedural point of view only but that it was substantively sound.

Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a recommendation in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and under section 13 of the Industrial Relations Act, 1969.

I recommend that the Complainant is paid €4,000 compensation for the flaws in the procedural fairness of the investigation. This takes into account that the Respondent has already contributed €6,000 in costs to the Complainant.

This is to be paid within six weeks of the date below and is in full and final settlement of this dispute.

Eugene Hanly

Adjudication Officer

Dated:   04/11/2016