ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003138

Dispute for Resolution:

Date of Adjudication Hearing: 11th August 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 Act 1969 and following the referral of the dispute 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. 

Attendance at Hearing:

Summary of Trade Union Case:  

IMPACT said the Complainant is employed by the Respondent as a Training Officer in the Human Resources Department.

IMPACT said that on 25^th February 2014, the Complainant made a formal grievance complaint against a named Senior Executive Engineer under the Respondent’s Grievance Procedures.   The complaint concerned what, in the Complainant’s opinion, were offensive emails of 1^st and 4^th October 2013 from the Senior Executive Engineer: the substance of the complaint was that:

• The Engineer’s allegations in his emails of 1^st and 4^th October 2013 were completely false.

• These false allegations caused considerable damage to the Complainant’s health.

• The Engineer had violated the Complainant’s rights to be treated with dignity, courtesy and respect at work

On 15^th and 21^st May 2014, the Complainant met with the Internal Investigation Team appointed by the Respondent to investigate his complaint.   IMPACT said that the Complainant was not informed of all of his options in terms of being accompanied at the Meeting on 15^th May; he was simply informed that he could be accompanied by a work colleague or a trade union representative.   The Complainant later learnt that he had other options as the Engineer was accompanied by a HR Consultant.   IMPACT said that furthermore he was not informed of his right to any representation whatsoever at the Meeting of 21^st May 2016.

Subsequently the Complainant was handed a draft copy of the minutes of these meeting by a member of the Investigation Team and he was asked to submit his observations.   On 17^th June 2014, he requested a number of amendments to these minutes as they were, in his opinion inaccurate, incomplete and misleading.   His requested amendments turned into a dispute and became the subject of correspondence between him and the Investigation Team between 14^th August 2014 and 7^th November 2014.

On 23^rd January the local IMPACT Representative contacted the Investigation Team and the HR Department to inform them that the Investigation was not adhering to the general principles of natural justice and fair procedures.   The Investigation Team responded on 26^th January 2015 denying that this was the case.

The Investigation Team interviewed the Engineer on 27^th January 2015 and 6 other employees as witnesses on 25^th and 26^th February 2015.

Following these interviews a significant amount of correspondence was exchanged between the Complainant and the Interview Team between 13^th March 2015 and 21^st July 2015.

At the conclusion of their Investigation the Investigation Team presented a Report dated 20^th July 2015 to the named Acting Director of Services.   The Acting Director of Services telephoned the Complainant on 4^th August 2015, enquiring when he was taking annual leave as he wished to issue him with a copy of the Report of the Investigation Team.   The Complainant responded the same day requesting that the Report be deferred as he was due to take leave.   However this was refused and the Report was issued to the Complainant the following day, 5^th August 2015.   IMPACT said they are seeking these holidays back for the Complainant as his ability to rest and relax during them was impossible due to this action.

The Acting Director of Services also requested on 5^th August 2015, that the Complainant meet with him on 27^th August 2015 for the purpose of him putting forward any comments he wished to make on the Report of the Investigation Team and any additional evidence that may not have been submitted during the investigation process.   IMPACT said that this effectively allowed the Complainant just 2 working days to examine the Report and prepare for the Meeting and he, on return from his annual leave requested that the Meeting be deferred, which was agreed to.

The Complainant and his IMPACT Representative attended the rescheduled Meeting with the Acting Director of Services on 14^th September 2015.   The Complainant presented his comments on the Report by way of a very detailed written response.

On 2^nd December 215 the Complainant received the Acting Director of Services decision, which was to not uphold the Complainant’s grievance complaint.

IMPACT submitted the following in support of their claim.

That the Investigation Team failed to adhere to procedural fairness and natural justice throughout the investigation.

That the Complainant was not informed of all his options in terms of his right to have representation present at his meetings with the Investigation Team on 15^th May and that he was denied his right to representation at the one on 21^st May 2014.

That he was denied the right to be provided with a copy of the procedures specifically governing the conduct of the Investigation.   That he was denied the right to have his case recorded properly.

That in his opinion the other party received considerably more favourable treatment at his meetings with the Investigation Team.

That in his opinion the Investigation Team denied him the right to a complete response to a number of significant queries on issues that impacted on the conduct of the Investigation.       That in his view he was denied his right to internal advice and support from the Respondent throughout the Investigation, leaving him feeling isolated and vulnerable.   He said he encountered a delay of over one month when he sought advice from the Investigation Team on his right to further counselling assistance under the Respondent’s Employee Assistance Programme.

The Complainant said the Engineer made further allegations against him in the course of the Investigation, which he refutes in the strongest terms.   In his view the Investigation Team denied him the rights to natural justice and procedural fairness by not providing him with a right of reply and the opportunity to face his accusers and respond to these allegations.

The Complainant presented a written response to the Investigation Team’s Report.   The Acting Director of Services stated on a number of occasions at the Meeting that it was “unorthodox and unusual” for the Complainant to submit his comments in writing.   The Complainant found the Acting Director Services’ attitude with regard to him having submitted a written rather than a verbal response as unreasonable, unfair and unsettling which he also found in relation that the Acting Director of Services maintained it was disingenuous of the Complainant not to have informed him that he had presented his IMPACT Representative with a copy of the Investigation Team’s Report.

IMPACT said there is no evidence of the Acting Director of Services having engaged in any critical analysis of the Investigation Team’s findings and conclusions, nor is there any evidence of him having taken into consideration the Complainant’s detailed response and IMPACT said it appears the Acting Director of Services simply ‘rubber stamped’ the Investigation Team’s findings and conclusions.

IMPACT said there was a failure to inform the Complainant of his right to appeal the Acting Director of Services decision conveyed to him on 2^nd December 2015.   IMPACT stated that they strongly disputed the specific conclusions reached by the Investigation Team and they submitted a detailed summary of the reasons for this.

In conclusion IMPACT stated they were seeking:

• A finding that the Investigation Team and the Acting Director of Services frequently denied the Complainant his rights to procedural fairness and natural justice throughout the Investigation.

• That the Complainant’s grievance complaint of 25^th February 2015 be upheld.

• A finding that the Complainant has the right of reply to further allegations made by the Engineer at his Meeting on 27^th January 2015 with the Investigation Team

• That the Complainant be reimbursed his annual leave for the period from 6^th to 25^th August 2015, given that he could not reasonably enjoy his annual leave due to the unnecessary stress and anxiety caused as a direct result of the Respondent’s insistence that the Investigation Report issue on the eve of his annual leave on 5^th August 2015.

IMPACT and the Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said the Complainant is employed by them as a Training Officer in their Human Resources Department. 

On 17^th February 2014, the Complainant sent a memo to his Line Manager in which he made a complaint against a named Senior Executive Engineer.   The complaint relates to emails dated 1^st and 4^th October 2013, issued to the Complainant by the Engineer and a member of the Engineer’s staff a General Services Supervisor, regarding mandatory Health and Safety and PMD’s training.   The Supervisor had stated that he would not be attending the training as he was due to retire in early 2014 and he had ongoing back problems.   The Complainant’s written account of the telephone discussion states that he explained to the Supervisor that he was required to attend the training and the Complainant proposed to the Supervisor measures that would accommodate the Supervisor’s attendance.   Following the telephone discussion with the Complainant, the Supervisor spoke to the Engineer and on 1^st October 2013, the Engineer issued his first email to the Complainant alleging that the nature and tone of the Complainant’s discussion with the Supervisor was completely inappropriate and reckless.   The Complainant replied to the Engineer on 3^rd October 2013 and requested him to immediately retract the allegation and if this was not forthcoming he would be pursuing the matter further.   The Engineer replied to the Complainant on 4^th October 2013, and repeated his allegation against the Complainant; both emails of 1^st and 3^rd October were copied to relevant personnel.

The Respondent said that in his complaint of 17^th February 2014, the Complainant stated that the allegations in the Engineer’s emails of 1^st and 4^th October 2013, were false and that they caused him considerable damage to his character, reputation and his good name.   He alleged that he felt degraded and humiliated and that it caused him anxiety and distress and that the Engineer had violated his right to treated with dignity, courtesy and respect at work.   He further alleged that the Complainant’s actions were totally unacceptable and fell considerably short of the required standards of behaviour and they constituted serious misconduct.   In his memo of 17^th February 2014, the Complainant sought advice from his Line Manager on the procedure to be followed to pursue his complaint.

On 24^th February 2014, the Complainant was advised by his Line Manager that he could pursue his complaint under the Respondent’s Grievance Procedure.   He was requested by his Line Manager to familiarise himself with the process in the Grievance Procedure and the options for dealing with his grievance complaint, i.e. through the informal or the formal process.   He was advised by his Line Manager that the informal process could also involve mediation if both parties agreed to it.   He was requested by his Line Manager to confirm how he wished to have his complaint dealt with after he had familiarised himself with the process.   His Line Manager offered him assistance and guidance in relation to any queries he might have before making his final decision and she informed him that the Respondent’s Employee Assistance Programme (EAP) was available to him free of charge 24/7, should he wish to use it and he was also provided with contact details and a booklet explaining the services available under EAP.

On 25^th February 2014, the Complainant confirmed that he wished to have his complaint dealt with through the Formal Process under the Grievance Procedure and he stated he did not wish to have the matter dealt with through the Informal Process or the Mediation Process.

The Director of Services for Human Resources appointed two senior management representatives from the Finance and the Planning Department to formally investigate the complaint.   During the process the Investigation Team was required to:

• Gather facts and confirm the facts

• Identify and interview

• Review the evidence

• Determine objectively and fairly what was most likely to have occurred

• On completion of the Investigation the Investigation Team to issue a Report to the Director of Services he as to whether or not the grievance is upheld and/or there is a case to answer.

On 27^th July 2015, the Investigation Team presented their Report and Findings to the Director of Services HR.   The Respondent said that this followed lengthy and protracted exchanges between the Complainant and the Investigation Team in relation to the minutes of meetings and procedures.   During the course of the Investigation the Investigation Team interviewed the Complainant, the person against whom he had complained and 5 witnesses.   At the end of the process the Investigation Team formed the view that the Complainant’s grievance complaint was not upheld.   However the Investigation Team was also of the view that both parties acted in good faith at all times and that there was nothing vexatious about the grievance complaint.    

The Investigation Team found that ultimately the Complainant was attempting to carry out his job as Training Officer in seeking to ensure that all employees attended mandatory training sessions.   They also found that the Engineer was fulfilling his management role in expressing his concerns to the Complainant about discussions with the Supervisor.   The Investigation Team formed the view that this was an unfortunate sequence of events that unfolded for which no one was responsible and that no blame should attach to either of the parties involved.   It was found that the Complainant and the Engineer were acting in the Supervisor’s best interests and in the interests of the Respondent Employer.

On 30^th July 2015, in line with Section 5 of the Respondent’s Grievance Procedure, the Director of Services HR, sent a copy of the Report to both the Complainant and the Engineer, and invited them individually to a Meeting with him in advance of his decision, in order to afford them an opportunity to comment on the Report and Findings and to put forward any additional evidence that they may not have put forward during the Investigation process.   The Meeting with the Engineer took place on 27^th August 2015 and with the Complainant on 14^th September 2015; at that Meeting the Complainant presented a written response.   In his response the Complainant disputed the conclusions reached by the Investigation Team and requested that his grievance complaint be upheld.   He alleged that the Investigation Team frequently denied him his rights to procedural fairness and natural justice throughout the Investigation.

On 16^th November 2015, the Director of Services HR presented his Report and Recommendations on the Findings of the Investigation Team.   He concurred with the Findings of the Investigation Team and he found that no reason existed to instigate a disciplinary process.   He further recommended that the Complainant’s complaints and the issues pertaining to it should not be recorded on the personnel file of ether of the two employees involved.

The Respondent said that in his referral to the WRC, the Complainant states that, in his opinion, he was denied his rights to natural justice and fair procedure.   He is seeking to have the Report set aside and the issues that arose subsequently addressed.

The Respondent said that the Report of the Investigation Team is detailed and comprehensive and it was meticulously compiled over a period of 16 months.   The Investigation Team forensically examined available evidence and all relevant parties had an input.   They examined the relevant emails and the telephone calls that took place before, during and after the exchange of emails.   The Investigation Team examined individually every aspect of the complaint and proofed them against the available evidence and witness statements.   Following this investigation definitive conclusions were arrived at on the merits of the complaint and the Investigation Team determined that the complaint was not upheld.   The Respondent said that the Complainant was offered the opportunity to address any additional details not covered in the Report of the Investigation Team in a face to face meeting with the Director of Services HR before the Director reached his conclusion and Recommendation.

The Respondent said the Report of the Investigation Team clearly shows that the Investigation was conducted under the Respondent’s Grievances and Disciplinary Procedures and in accordance with the principles of natural justice and fair procedures.

The Respondent said that their Grievance Procedure is derived from National Local Authority Sector Policy from LGMA that was agreed with the trade unions at the time.   All issues raised by the Complainant during the course of the Investigation, including his assertion that he was denied his rights to natural justice and fair procedures, were dealt with and responded to individually and comprehensively at the time by the Investigation Team.

The Respondent said that the main reason why the Investigation took 16 months to complete was the time taken by the Investigation Team in dealing meticulously with the multitude of queries raised by the Complainant in relation to minutes of meetings and procedures.   The Respondent is satisfied that the principles of natural justice and fair procedures were applied throughout the process and they refute the contention that he was denied his rights to natural and justice and fair procedures during the course of the Investigation.

It was submitted by the Respondent that as the matter was dealt with as a grievance there is no undue burden on them.   The Respondent said their responsibility in relation to any grievance raised is to hear the complaint, advise the person(s) of the complaint where relevant and to seek to resolve the matter.    They said, in this case, a formal and lengthy investigation was held and all parties to the complaint were provided with opportunity at every stage to engage with and to comment on the procedures.   The Complainant was afforded every opportunity and was afforded the right to be represented at all stages under Section 3, General Principles of the Grievance Procedure.

The Respondent submitted that the complaint was not well founded and they sought that the claim be rejected and their position be upheld.

Findings and Recommendation:

Section 41 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 of the Industrial Relations Act 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.

I note that the Complainant in his Complainant was effectively seeking in his Complaint Form to have the Report of the Investigation into complaints made by him set aside and that his then complaints to be now upheld.

I have no doubt that the Complainant was greatly distressed by what occurred.     However the Complainant’s complaint’s refers to emails sent to him on 1^st and 4^th October 2013, a period of now more than 3 years ago that were the subject of formal complaints made by him on 25th February 2014.   I cannot accept that it would be legally safe, legally fair or practically possible to accede to the Complainant’s requests in that respect in view of the lapse of time.   Nor would it be legally safe, fair or practically possible to attempt to conduct a fresh investigation at this remove.  

I believe that both of these reasons or positions are acknowledged by the Complainant and IMPACT.   In these circumstances it is not possible to uphold the Complainant’s claim at this time.  

Notwithstanding the foregoing I do not understand why the Respondent could or did not accede to the Complainant’s request to defer the issuing of the Investigation Report for a short period of weeks rather than issue it immediately before the Complainant went on annual leave.   I can readily understand and accept that the Complainant was consequently unable to relax and enjoy his holidays in all the circumstances.

I now recommend that both parties, and in particular the Complainant, should now move on from this matter, put it behind them and work to establish or re-establish good working relationships.   I further recommend that as a gesture of goodwill and to provide a full and final settlement of the matter the Respondent should make available to the Complainant an additional 2 week period of annual leave to be taken at a time agreed between the parties during 2017.

I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted by either party or any other party in any other dispute.

Seán Reilly, Adjudication Officer  

Dated: ___      16^th November 2016