ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002004

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

Date of Adjudication Hearing: 26/08/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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:

The Complainant is seeking an Adjudication Hearing in respect of an appeal of the terms of an Investigation Report into complaint of bullying lodged by her against the Respondent, her employer.

The Complainant referred the complaint with specific reference to the provisions of Section 8(K) of Statutory Instrument 17 of 2002.

The Complainant is an employee of the Respondent and continues to submit medical certificates to the Respondent.

The Complainant felt the investigation & report into her complaint were not acceptable.

The Complainant noted she did not get the minutes from the meetings to approve nor did she get the minutes of any meetings which contributed to the investigation and report.

The Complainant states that witnesses that she referred to in relation to her complaint were not met with despite requests for them to be met by the Complainant and her employee representative. The Complainant argues that the reason the Investigation Report was not upheld is due to the evidence not collaborating. The Complainant states she gave the Investigation Manager phone numbers of four witnesses but argues there is no proof these named witness have been contacted. The Complainant states her named witnesses were never contacted.

The witness for the company however was contacted and included in the investigation process.

The Complainant was not given an opportunity to comment on the Respondents feedback within the Investigation Report prior to the report being finalised.

The initial meeting with the Complainant was on the 25th June 2015. The Complainant did not hear back from the Respondent until December 2015 when it is stated that the Respondent wrote to the Complainant asking her to meet but she had yet to receive the finalised Investigation Report.

Respondent’s Submission and Presentation:

The Respondent engaged the services of an independent HR professional to conduct the Investigation.

The Respondent stated that following up with witnesses etc was left to the HR professional to conduct the investigation.

The Subject of Complaint was made aware of the fact that witnesses named by the Complainant did not wish to get involved but this was not referred to in the investigation report.

The Respondent states that the Directors father was mentioned as a witness but that he was not named by the Employee and he was still met.

The Investigation Report was not finalised until December 2015. The Respondent agrees that there was a delay in the process which resulted in a six month investigation process however it was due to diary constrains and bereavement associated with the investigator.

The Respondent received a copy of the Investigation Report in the post and they assumed a copy was forwarded to the Complainant. The Respondent gave a copy to the Complainant when she requested it.

Decision:

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

Issues for Decision:

The issue for decision is to establish whether the Complainant was subject to fair and due process in the completion of an Investigation into her complaint.

Legislation involved and requirements of legislation:

S.I. No. 17/2002, Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in The Workplace) (Declaration) Order 2002 Section 8 states:

If an informal approach is inappropriate or if after the informal stage, the bullying persists, the following formal procedures should be invoked:-

a. The complainant should make a formal complaint in writing to his/her immediate supervisor, or if preferred, any member of management. The complaint should be confined to precise details of actual incidents of bullying.

b. The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them. They should be given a copy of the complainant's statement and advised that they shall be afforded a fair opportunity to respond to the allegation(s).

c. The complaint should be subject to an initial examination by a designated member of management, who can be considered impartial with a view to determining an appropriate course of action. An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).

Investigation

d. The investigation should be conducted by either a designated member or members of management or, if deemed appropriate, an agreed third party. The investigation should be conducted thoroughly, objectively with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).

e. The investigation should be governed by terms of reference, preferably agreed between the parties in advance.

f. The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both the complainant and alleged perpetrator(s) may be accompanied by a work colleague or employee/trade union representative if so desired.

g. Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within an agreed timeframe. On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.

h. Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.

i. The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation.

Outcome

j. Should management decide that the complaint is well founded, the alleged perpetrator(s) should be given a formal interview to determine an appropriate course of action. Such action could, for example involve counselling and/or monitoring or progressing the issue through the disciplinary and grievance procedure of the employment. 2

k. If either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations mechanisms.

Section 71 of the Industrial Relations Act, 1946 states:

(1) Where the Court becomes aware that a trade dispute has occurred resulting in a stoppage of work in any trade or industry the Court may investigate the dispute, if satisfied that no trade union of workers is promoting or assisting the dispute.

(2) Where the Court decides to investigate a trade dispute in accordance with this section the following provisions shall have effect—

(a) the Court shall cause to be published in at least one newspaper circulating in the area in which the dispute has occurred notice of the time (which shall be not less than two clear days after the date of publication of such newspaper) and place at which the Court will sit to take evidence in relation to the dispute from persons concerned therein;

(b) the Court shall, at such sitting or any adjournment thereof, take evidence in relation to the dispute from all persons, appearing before it to give evidence, who, in the opinion of the Court, are concerned in the dispute;

(c) on hearing evidence the Court shall, as it thinks proper—

(i) decide not to take any action in regard to the dispute, or

(ii) publish a recommendation setting forth the opinion of the Court on the merits of the dispute and the manner in which it should be settled, or

(iii) make an award (which shall not be inconsistent in its terms with a registered employment agreement, within the meaning of Part III of this Act), setting forth the conditions on which, in the opinion of the Court, the dispute should be settled.

Decision:

I have investigated the above complaint and make the following decision in accordance with the relevant sections of the Acts set out above and the following are my conclusions:

I am finding that the timeline of the Investigation was protracted and unnecessary.

I am finding that the Investigation did not meet named witnesses nor has supporting evidence as to explain this.

I am finding that the Complainant was not given the opportunity to respond to the findings including the Respondents feedback within the Investigation Report prior to the report being finalised.

The Complainant established that she was subject to a flawed procedural investigation.

Therefore I find against the Respondent in regards to the complaint.

As per Section 71 of the Industrial Relations Act, 1946 my recommendation is that the Respondent revisit the complaint and start afresh in conducting an Investigation adhering to the rules of natural justice in an attempt to resolve this dispute.

Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within an agreed timeframe. The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both parties should be given the opportunity to comment on the findings before any action is decided upon by management. The Complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation. The Company must ensure there is recorded delivery of these findings to show the process has been completed accordingly.

Dated: 25 October 2016