ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003565

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/10/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

1. A transfer of undertaking occurred on 3 February 2014 where the transferor company, transferred ownership of the security business to the Respondent. A total of 57 employees were transferred, the Complainant being one.                                                                                                              

2. The Complainant had commenced working as a security guard for the transferor company on 16 December 2003.

3. Soon after the transfer had taken place, the Complainant worked on a site, which was being managed by MW. He had disagreements with MW during this time and he found MW to be difficult and aggressive to work with.

4. On 27 January 2016, the Complainant was asked by MW (by now Operations Manager of the Respondent) to attend an investigation meeting on 3 February 2016. The investigation concerned an alleged unauthorised absence from work on 21 January 2016.

5. The Complainant objected to having to attend this meeting and denied that the absence was unauthorised. He emailed MW and stated that day had been authorised, that he had followed company protocol in requesting the leave day and that the leave day was not a holiday but was an unpaid leave day, as was permitted by the terms and conditions of his contract.

6. The Complainant submitted that the protocol for taking an unpaid leave day was that he must notify the National Call Centre (NCC) giving 8 hours’ notice, which he had complied with.

7. He stated that not only did he comply with this, but he had further telephoned the NCC one week earlier giving notice of the leave day he was taking. The company practice under his old contract (with the transferor company) was that notice could be by way of phone call as opposed to written confirmation.

8. He stated that he had telephoned J, in NCC, on 15 January 2016 to give notice that he would be taking a day of unpaid leave on 21 January.

9. On 20 January, by way of reminder, he telephoned the NCC again and spoke to M. He said that he would be taking a day of unpaid leave the next day and that he had already spoken to J about this the previous week. M told him that he must send an email into the office, which he did, at 3 pm.

10. The Complainant did not believe that there was any problem with this. The only thing that concerned him was why he was asked to send in an email to confirm the day of absence, because protocol until then the practice had been that a phone call would suffice.

11. He did not check his e mails on the day, after this point because he did not think that there was a problem and said in evidence that, had the company had a difficulty with him taking the following day off, they should have telephoned him to let him know. Once off work, it was not his habit to check his emails. Certainly, M had not raised an objection when he made the telephone reminder.

12. He accepted that on his return to work that there were two emails from NCC, sent at 15.59 and at 17.59 on 20 January, which disputed his right to take the day off.

13. The Complainant then received the invitation by MW to attend the investigation meeting.

14. Once he received the invitation from MW to attend the investigation meeting, he became stressed and annoyed. He believed that the meeting was unnecessary and he believed that the accusation against him was contrived. The investigation represented a continuation of an aggressive and bullying attitude taken by MW against him since the transfer of the business had occurred. However despite this, he nonetheless attended the meeting

15. At the meeting he was faced with a bullying and hostile attitude by MW towards him and that MW presented him with an unfair ultimatum which was either to sign a “release form” which would release all his personnel records held by the transferor company (his previous employer) to them or else he would be deemed to have accepted the new terms and conditions of employment which were those of the Respondent.

16. The Complainant believed that he was under no obligation to sign the release form. He felt that legally the transferor company were obliged to transfer all his terms and conditions to the Respondent and that he believed that this had occurred, because all employees were advised at the time of the transfer, that this had occurred. He felt that it was the responsibility of the Respondent to ensure that they, the Respondent, had received all the terms and conditions of the employment from the transferor and that it was not his responsibility to furnish copies of what he had in his possession. He did not sign the release form because he felt that that responsibility was not his. He believed that MW was not telling the truth at the meeting and he felt that the demeanour of MW towards him was aggressive, hostile and degrading. He found that the ultimatum to be an act of bullying and he refused to do sign the form.

17. He further submitted that he had not been put on notice that he would be asked at the meeting to sign a release form and that this should not have been “jumped “ on him at the meeting, Instead, prior to the meeting the Respondent should have given him notice that he would be asked to sign a release form.

18. The Complainant also submits that MW had no right to request that he attend an investigation meeting, in the first place, as MW is not his line manager and that this is further evidence that MW had a personal gripe with him.

19. At the hearing on 3 February, the Complainant said that he showed MW the document dated September 2012, which all employees had received from the transferor prior to transfer, which stated “The period to notify the NCC of non-attendance for a shift, for whatever reason, is extended to 8 hours” It was this document that assured the Complainant that he had complied with the notice requirement that had been required by the transferor company, vis a vis, taking an unpaid leave day and therefore this right transferred to his employment with the Respondent.

20. The outcome of the meeting was that the Complainant refused to sign the release form and he was told that he would be advised of the outcome of the investigation by way of letter.

21. FC, a manager of the Respondent, wrote to the Complainant on 4 February 2016 and advised him that even though the Respondent felt that they had not been properly advised by the Complainant about his absence on 21 January, that they would close off the matter with no further action being taken.

22. On 10 February the Complainant instigated the company grievance procedure and made a formal complaint about MW and the manner in which he was treated at the meeting and requested that MW be disciplined about the way in which he had treated the Complainant.

23. FC arranged a grievance meeting on 23 February 2016 however at the meeting the Complainant complained that FC had demonstrated bias in favour of the Respondent and on foot of this, FC recused herself from dealing with the grievance hearing on 21 March 2016.

24. The grievance was then transferred to DB to investigate and a hearing was set up on 17 May 2016.

25. The Complainant submits that at this meeting DB, not only failed to hear the complaint which was about how MW had dealt with him and bullied him and the meeting on 3 February but rather, worsened matters by explaining why the Respondent needed all his terms and conditions and asked him, again, to sign the same release form. This compounded the bullying, harassment and victimisation. DB then went on to find that there had been no wrong doing on the part of MW and that the complaint of bullying was without grounds.

26. The Complainant is of the opinion that MW had contrived the whole issue of an unauthorised absence, that he knew that the Complainant had followed company protocol, not only fully but also over and above in terms of giving one weeks notice, when only 8 hours notice was required, that MW was being less than candid with the Complainant during period up to the meeting of 3 February. In an email MW stated that the company had not received the email on 20^th January, which was clearly an untruth, as the Complainant could evidence the fact that this had been sent.

27. The Complainant’s belief that MW was telling lies though-out the investigation underlay the Complainant’s view that MW had contrived the investigation. The Complainant submitted that the allegation, that he had taken an unauthorised leave day, was without basis and once MW had received the copy of the email (sent to NCC on 20 January)he should have had no basis to proceed with the investigation, and yet he did and the fact that he treated him with such disrespect during the hearing is further evidence of bullying and harassment.

28. The Complainant submitted that he raised a grievance against MW and the manner in which he was treated. That this matter was dealt with by the HR manager, FC. He states that FC stated during their meeting , on 23 February, “that files get lost all the time “. From this the Complainant believed that the Respondent had lost his contract, which had not been said before then and which he believed was a lie.

29. The Complainant believed that FC demonstrated bias in the manner in which she dealt with the grievance procedure and when this was communicated to FC by the Complainant, FC accepted that she would recuse herself form the hearing

30. The grievance complaint was then passed to DB, the managing director, who met with the Complainant on 17 May 2016. At that meeting, it was clear that DB had no interest in listening to the grievance that the Complainant wanted aired. All DB was interested in was defending the Respondent, which given the purpose of the meeting, was inappropriate and compounded all the stress and anxiety that the Complainant felt following and as a result of the 3 February meeting.

31. The outcome of the grievance meeting, which exonerated MW and FC was an inadequate finding, based on a flawed hearing that was procedurally and substantively unfair.

32. At now stage did any representative of the Respondent actually listen to his complaint into the fact that he had been bullied.

Respondent’s Submission and Presentation:

1. The Respondent denies that there was a protocol in the company to take unpaid leave days.

2. The contract documents received from the transferor company to the Respondent comprised of a two page contract dated 16 December 2003 and an Employee handbook

3. As per the terms and conditions contained in these two documents, leave days could be taken for holidays (20 days paid leave per year), Force Majeure Leave (3 days paid leave per year) Adoptive Leave (24 weeks paid leave and 16 weeks unpaid leave) Carer’s Leave (104 weeks unpaid leave) but that other than these specific headings, there was no entitlement in the terms and conditions to take days off for unpaid leave. The Respondent has no knowledge of the contractual right to take unpaid leave by giving 8 hours notice.

4. The Respondent did not received the document of September 2012 which purported to allow employees take an unpaid leave day if they give the NCC 8 hours notice. They neither saw it nor knew of its existence prior to the Adjudication hearing.

5. The Respondent accepts that the Complainant sent an email on 21 January to J stating that he was taking a day of unpaid leave, however the Respondent submits that, in their view and in the absence of knowing anything to the contrary, he had no right to do this.

6. The Respondent accepts that via a series of emails the Complainant stated and re-stated that it was within his rights in his contract that he can take leave by giving the Respondent 8 hours notice. He stated that this had been the practice prior to the transfer and that as such all employees continued to enjoy this right. However the Respondent disagreed with this contention, as such a term was neither in the contract document nor the employee handbook.

7. MW denied that he was aggressive in the meeting. He accepts that he asked the Complainant to sign a release form but this arose only because the Complainant said that he enjoyed terms and conditions which were at variance to what was in the contractual documents received from the transferor, at the point of transfer. And faced with a refusal by the Complainant to furnish these directly on the Respondent, the only way that they could be obtained was if the Complainant agreed to have them formally released by the Transferor.

8. This request was not an act of bullying, rather if there were terms and conditions which the Respondent did not have, they could only obtain all the original terms and conditions if the Complainant agreed for them to be released from the transferor. It was in the interests of the Complainant that this occur, not the Respondent.

9. MW stated that he explained to the Complainant that it would benefit both of them if the full records could be released. He suggests that this approach doe not indicate a bullying or threatening attitude, quite the reverse in fact.

10. MW stated that the issue of giving him prior notice that this request would be made at the meeting, could not be known in advance of the meeting, because MW could not predict that the Complainant would refuse to provide the documents on a voluntary basis.

11. MW adamantly denied that the Complainant showed him the September 2012 document at the meeting and suggested that had the Complainant done so, it would have avoided the entire dispute and indeed the need for an Adjudication into the matter.

12. MW states that the first time that he saw the September 2012 letter was on the first day of the Adjudication Hearing on 25 August 2016.

13. MW denied that he told any untruths and suggested that rather it was the Complainant who was telling untruths.

14. On 4 February 2016 FC, HR Manager for the Respondent wrote to the Complainant and stated that the matter would be closed off without consequence. The Respondent submits that this is further evidence that no personal animosity or aggression shown towards the Complainant. Indeed, bearing in mind the lack of cooperation the Complainant displayed toward the Respondent during the 3 February meeting, the Respondent could have chosen to sanction the Complainant for this, but did not do so. The Respondent submits that it was reasonable at all times and rather it is the Complainant who is being unreasonable.

15. In relation to how FC handled the grievance complaint, the Respondent stated that FC was unavailable to give evidence as she was not longer employed by the Respondent. However it submitted that by conceding to recuse herself because the Complainant accused her of bias, which demonstrates a reasonable attitude by FC towards the Complainant.

16. In relation to how DB dealt with the grievance meeting on 17 May 2016 he denies that he had pre-judged the grievance. He denied that he did not listen to the Complainant. He stated that having listened to the Complainant that he believed that MW had acted in the interests of both parties in seeking to have the terms and conditions released. That this was not an act of bullying or intimidation. He denied that he conducted the meeting by defending the actions of MW and FC. However he did state at the meeting that in his view there was no wrong doing either by MW or by FC towards the Complainant. This was said at the conclusion of the meeting.

17. At the Adjudication hearing, DB stated that he believed that the Complainant was being less that truthful at the Adjudication hearing.

Recommendation:

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

Having heard the evidence and considered the documents that have been furnished my findings are as follows:

1. I believe that the poor relations between MW and the Complainant prior to the allegation of unauthorised leave were significant in this matter escalating, rather than resolving.

    

2. I believe that the Complainant believed that MW did have within his possession the document entitled September 2012

    

3. I do not believe that MW or the Respondent did have this document within his possession and I accept the evidence of the Respondent witnesses that the first time that they saw this document was on the first day of the Adjudication hearing, 23 August 2016.

    

4. I accept that the Complainant felt victimised because in his opinion, he gave adequate notice for a day of unpaid leave, namely 24 hours’ notice (even if the phone call made the previous week was discounted) when he was only obliged to give 8 hours.

    

5. I accept that this was a term of his previous contract

    

6. I accept that the Complainant believed that MW was trying to victimise him by calling an investigative meeting and I accept that the Complainant believed that the charge against him was concocted.

    

7. However I do not accept that MW concocted the charge. In the absence of knowledge of the September 2012 document, MW had no reason to believe that the terms of the contract were anything other than what was contained in the contract or in the handbook, which was all the Respondent possessed. He believed that there was a need to investigate the allegation of an unauthorised absence and he was entitled to hold this meeting, as operations manager.

    

8. A work relationship can only function if both parties trust the other. In this case, the Complainant, perhaps due to earlier dealings with MW, did not trust MW and when he was asked to attend an investigation meeting he immediately protested and became defensive. This is not the usual way of reacting when one is asked to attend an investigation meeting.

    

9. This defensiveness carried into the meeting on 3 February, when the Complainant refused to show the letter of September 2012 or indeed identify where in his contractual documents, it stated that he was entitled to take unpaid leave in the manner in which he did. He then refused to sign a release from which might have allowed the Respondent obtain the letter of September 2012.

    

10. I do not accept that the letter of September 2012 was shown by the Complainant to MW at the meeting on 3 February. I accept the evidence of the Respondent that it did not see it until the first Adjudication Hearing because that evidence is more credible.

     

11. However this case is about, not whether he was entitled to take a days leave in the manner that he did, rather it is whether the Respondent was fair in its dealings with the Complainant in his grievance application.

     

12. I accept that given the terms of the letter, as clarified by the Transferor letter obtained since the first Adjudication hearing, that the Complainant believed that he was entitled to take a day of unpaid leave giving 8 hours notice, and that that was permitted by his contract.

     

     

13. However how could the Respondent give notice for a term/condition of the contract that they did not know about?

     

14. An employment contract is not only made up of what is written down. There are also implied obligations on both employer and employee to act in a reasonable manner.

     

15. In my view when the Respondent requested that he sign a release form this was a reasonable request, and one, which the Complainant had an obligation to comply with. Had the Complainant complied with it, this would possibly have resolved the dispute.

     

16. The Complainant is correct when he says that contractual rights transfer once a transfer of undertaking has occurred. However, no more than if the transfer had never occurred and the transferor company had decided to amend the rules, as to how notice for a leave day should be sought, the Respondent too may amend practices if they give notice to the employees and if there is good reason to do so. Terms of employment can change over time and as long as these do not amount to a dimunition of rights, then changes are not only allowed to be made, but are necessary and inevitable.

     

17. If the Complainant had not immediately been defensive when he was asked to attend an investigation meeting (something that MW was fully within his authority to request) if he had shown the September 2012 document to MW either in advance of the meeting or at the meeting. If he had agreed to sign the release document, then the Respondent would have seen the basis upon which the Complainant claimed he had the right to do what he did.

     

18. All documents should have passed from the transferor to the Respondent, however this did not occur, which is not uncommon.

     

19. In relation to how FC and DB dealt with the grievance complaint. I have no criticism of FC, who in recusing herself was the appropriate action to take, given the complaint that she had prejudged the outcome before the hearing.

     

20. However I do take some issue with how DB dealt with the grievance. The record of that meeting (as written by DB) reveals that rather than listening to the Complainant’s complaint, he started the meeting by defending the way in which MW dealt with the issue of unpaid leave. It would have been better if he had actively listened to and heard the complaint without interruption.

21. The role of DB on that day was not to justify the actions of MW or FC, it was rather to listen to and reflected upon the complaint as to, not the substance of the 3 February meeting, but the manner in which it was conducted.

     

22. DB wrongly, in my view, treated the grievance meeting as if it was an appeal of a disciplinary hearing. The minutes, as noted by DB himself, demonstrate that there was more talking than listening done by him. Grievance meeting are an exercise to allow someone be heard. Best practice is that the discussion is then reflected upon after the meeting before an outcome is made and communicated.

     

23. It is especially important that a grievance hearing into a charge of bullying is one in which the complainant is respected and heard. Perhaps if the Complainant had felt that he was being listened to and heard, the fact that he did have good reason to give notice in the way that he did, might have emerged.

     

24. However the ongoing non-cooperation of the Complainant was the main reason why his valid defence did not surface. If an employer suspects an employee of wrong doing, a fair process to determine whether there has been wrong doing or not, is for the employer to hold an investigation, where questions are asked and explanations are provided. This is not a criminal prosecution, where the obligation to prosecute lies with the accuser. If the Complainant had a good explanation for why he did what he did, if he possessed a letter which was evidence to support him doing what he did, then he was under an obligation to show that evidence to the Respondent when they asked. Or he should have signed the release form. To not do so was unreasonable.

     

25. Early in the meeting of 3 February MW asked the Complainant to show where in his contract was he allowed to take leave in the manner in which he did. This was the opportunity for the Complainant to identify the letter of September 2012. But instead the Complainant refused to give it by saying “You should have it.” The minutes reflect that MW requested the Complainant twice to show evidence of his claimed entitlement to give 8 hour notice. But the Complainant refused to. It was then that MW asked him to sign the release form, which was a reasonable request.

     

26. I am of the view that the Complainant was within his contract when he gave notice on 20 January, that he was taking a leave day the following day, because that was in his contract and the terms of his contract were not agreed. However when asked at the investigation meeting (which MW was entitled to ask him to attend and which he was obliged to go to) to furnish the evidence to demonstrate his contractual right, he refused and in doing so, the Respondent had an entitlement to ask him to release his contract documents. This request was reasonable.

     

27. Despite the points I have made in relation to DB handling the grievance complaint, which I hope will be instructive, I find that this case to be not well founded

Dated:   16/11/2016