ADJUDICATION OFFICER RECOMMENDATION

Adjudication Recommendation Reference: ADJ-00003598

Dispute for Resolution:

Date of Adjudication Hearing: 14/10/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 17^th June 2016 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. I proceeded to a hearing of the matter on 14^th October 2016. The Complainant represented himself whilst the Respondent was represented by In-house Counsel. All written and oral evidence presented to the WRC including the detailed complaint form and documentation submitted on behalf of the Respondent at the hearing have been taken into consideration when coming to this decision.

Complainant’s Submission and Presentation:

The Complainant has been employed by the Respondent in various IT sales related roles since 17^th September 2013. He confirmed that this dispute arises in relation to his dissatisfaction with the Respondent’s handling of his grievances submitted under its internal Grievance Policy which had not concluded at the time of referral on 17^th June 2016. As the Respondent had failed to deliver on various promises to complete the investigation after the 65 day time limit for dealing with such matters had expired, he lost faith and withdrew from the process, submitting this dispute. As at the date of this hearing on 14^th October 2016, the process had concluded and a report of the outcomes had been furnished to the Complainant on 19^th August 2016. In addition to the delays in the process, the Complainant was extremely unhappy with the outcome. The majority of his complaints had not been upheld with only three issues partially upheld. He had made allegations regarding malpractices within the Company and bullying and harassment against his former manager, including his involvement in and handling of a workplace accident suffered by the Complainant on 27^th October 2014 which is subject to separate legal proceedings. Arising from this accident, he had sustained a head injury and after taking a period of time off work to recover, he had moved to a new position within the Company which was effectively a demotion on lower pay. He seeks to have the WRC adjudicate on the matters forming the subject matter of his grievance. When questioned, the Complainant appeared to be unclear as to what, if any, of the Respondent’s internal appeal and other dispute resolution mechanisms for dealing with his grievances were still open to him.

Respondent’s Submission and Presentation:

Counsel for the Respondent explained that the Complainant had previously referred a dispute under Section 13 of the Industrial Relations Act 1969 to the former Labour Relations Commission on 9^th July 2015 in relation to the same subject matter. At that stage he had not raised a grievance with the Respondent or utilised any of its internal dispute resolution mechanisms. When the matter was opened at a hearing before a Rights Commissioner sometime in October/November 2015, he was directed to raise a grievance in accordance with the Respondent’s Grievance Policy, as it was deemed not appropriate for the matter to be adjudicated on in circumstances where internal procedures had not been utilised. It appears that the dispute was simply withdrawn and the Complainant proceeded to submit his grievances by way of correspondence submitted on 23^rd December 2015, 13^th January 2016 and 19^th January 2016 under the Respondent’s Grievance Policy and he also completed the Respondent’s Bullying and Inappropriate Behaviour Policy Form.

Counsel set out the chronology to this dispute and explained the reasons for the delay in dealing with the Complainant’s grievances. Firstly, the Complainant had raised a large number of serious allegations involving four of his colleagues who all had to be interviewed. Secondly, further to statements being obtained from those witnesses, on 13^th April 2016, the Complainant had raised a series of further and entirely new allegations which were investigated as part of the process. Thirdly, the reviewer involved in the investigation had become ill and was hospitalised for several weeks requiring a handover to a new reviewer. When the Complainant had raised issues with the delays in the process from early May 2016 onwards with the replacement reviewer and threatened referral to the WRC, these reasons had been fully explained to him and it was confirmed that the investigator and reviewer were endeavouring to complete the report as soon as practicably possible.

Notwithstanding same, the Complainant proceeded to submit this dispute to the WRC on 17^th June 2016. On 1^st July 2016, he was provided with the draft report for his comments. He confirmed by email of 11^th July 2016 that as he had submitted a dispute with the WRC, he was withdrawing from the process and would submit any remaining evidence to the WRC. The report therefore had to be finalised without his input and issued on 17^th August 2016 with a copy furnished to him on 19^th August 2016. The report addressed all sixteen of his allegations and ran to forty-one pages with seven lengthy appendices. Three instances of inappropriate behaviour by the Complainant’s former manager were found, which it was concluded did not constitute workplace bullying as defined in the Respondent’s Bullying and Harassment Policy. A number of actions to address the inappropriate behaviour in question were recommended. As the Complainant has submitted his dispute before the outcome of his grievance, it was submitted that the outcome is largely irrelevant.

It was also submitted that the Respondent had carried out a thorough and comprehensive investigation into the initial allegations submitted by the Complainant in December 2015/January 2016 and the additional new matters submitted some four months later in April 2016. The grievances raised were complex and involved allegations of bullying and harassment which the Respondent takes very seriously. Investigation into these allegations therefore warranted a substantial amount of resources, time and consideration in order to respect both the Complainant and his colleagues. Counsel also pointed out that the Grievance Policy in question provided that the time period may be extended depending upon the complexity of the issues and the availability of the parties involved. Counsel submitted that the Complainant had not afforded the Respondent requisite time to thoroughly investigate his grievances before opting out of the process and submitting this dispute. It was further submitted that he was premature in referring this dispute to the WRC before the Respondent’s internal procedures had concluded and where valid reasons for the delay had repeatedly been explained to him. Finally, if he was unhappy with the outcome there were at least two further internal stages of appeal that he could avail of, in addition to an internal mechanism for making protected disclosures if he wished to avail of this course. The Company/HR Representatives present confirmed that they were agreeable to allowing an extension of time for the Complainant to avail of the appeals process if he could proceed as soon as possible. They also confirmed that the Respondent would be happy to investigate any new matters arising.

Reasons & Findings:

Firstly, I fully understand the Complainant’s frustration with the time taken for his grievance to be investigated and his disappointment with the outcome. However, given the complexity and seriousness of his grievances along with the fact that he raised new matters during the process combined with the added difficulty of the reviewer becoming ill thus requiring a handover, I do not consider the delays in the process to be excessive in the circumstances. If the Complainant is dissatisfied with the outcome, he should exhaust all internal appeal and other dispute resolution mechanisms before referring the subject matter of his grievance as a dispute to the WRC. Although it appears that the Complainant’s grievance was dealt with at the third and final stage of a three stage process and the report in question is silent as to the availability of any appeals mechanism, I will take the Respondent’s Representatives’ word for it that the Complainant would be entitled to avail of two further internal stages of appeal and other alternative dispute resolution mechanisms.

It is also somewhat concerning to hear of the effects of the Complainant’s head injury, which included taking time off work to recover and a demotion to a lower position/salary. I am cognisant that this matter is subject to separate legal proceedings and will reserve comment, save than to say that it is imperative that the Respondent considers his health and well-being in relation to the manner in which it deals with any appeal or other internal dispute resolution mechanisms relating to this grievances including dealing with any such matters sensitively, efficiently and expeditiously.

Recommendation:

Based upon the aforesaid reasons and findings, I recommend the following course of action:

1. That the Respondent clearly outlines in writing, details of all internal appeal and other dispute resolution mechanisms still open to the Complainant for addressing his grievances, including the procedures and timelines for same within 42 days of the date hereof. This should be done regardless of whether the Complainant has already submitted an appeal.

    

2. That the Complainant exhausts all internal appeal and other dispute resolution mechanisms for addressing his grievances as soon as practicably possible thereafter, before considering further referral of same to the WRC under Section 13 of the Industrial Relations Act 1969;

    

3. That the Respondent deals with any such internal appeal or other dispute resolution mechanism availed of by the Complainant in a sensitive, efficient and expeditious manner.

    

    

Dated:   29 November 2016