FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KOHINOOR LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRE.) LTD) - AND - HUSSAIN ALI (REPRESENTED BY CHANGIZ DURRANI DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no r-158541-ir-15/SR.
BACKGROUND:
2. This case concerns a claim of bullying and harassment.
- The Employer said the claimant had never made a formal complaint of bullying and harassment for it to investigate.
- The Employee said he made oral complaints to the Employer on several occasions in the presence of other employees who witnessed these.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 20th April 2016 the Adjudication Officer issued the following Recommendation:-
- In circumstances where the employee has not raised a complaint of bullying and harassment, it is not possible for an employer to commence an investigation or indeed take any action in the absence of a formal complaint of bullying and harassment.
On that basis alone I must reject the claim or complaint.
In addition in this instance there was also a comprehensive anti-bullying and harassment procedure in place, but the Claimant failed to utilise that procedure and at no stage did he make the Employer aware of his complaints/concerns.
In such circumstances the Employer was afforded no opportunity to deal with these allegations and thus it was impossible for them to do anything about matters they were not made aware of.
In all of the above circumstances I see no merit in the claim/complaints under the Act; they are rejected by me and are not upheld.
- In circumstances where the employee has not raised a complaint of bullying and harassment, it is not possible for an employer to commence an investigation or indeed take any action in the absence of a formal complaint of bullying and harassment.
The claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 27th April 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 14th September 2016.
WORKER’S ARGUMENTS:
3. 1. The Worker raised these complaints orally.
2. He feared the removal of his Work Permit if he made a formal complaint.
3. It was only in July 2013, when he was nationalised that a friend helped him write the letters of complaint.
EMPLOYER’S ARGUMENTS:
4. 1. It was in a meeting with the Worker following his redundancy that he produced a number of letters dated from 2008. This was the first time the Employer had seen these letters.
2. Prior to this, the Employer never received any formal complaint.
3. The Worker was given new policies and procedures in 2010, 2012 and 2014 which he signed for.
DECISION:
This is an appeal by the worker against the Adjudication Officer’s Decision r-158541-ir-15/SR, which found no merit in his complaint that he had been subjected to bullying and harassment by his employer.
The Adjudication Officer found that as the Complainant had not submitted any complaint to his employer, despite the fact that the employer had an Anti-Bullying Policy, he therefore held against the Complainant’s claim. The Adjudication Officer found that in such circumstances the employer was not afforded an opportunity to deal with the allegations and as they were unaware of such allegations it was impossible for them to do anything about them.
The Complainant submitted a number of letters addressed to the employer, dated from 5thFebruary 2008 until 5thJune 2014, in which he seeks outstanding payments from his employer. While there was some reference in the letters written prior to July 2010 that he was stressed as a result of the alleged payments he was due and the way he was treated, he made no reference to such matters since that time.
The employer was firmly of the view that no such letters had been sent to it and denied ever having seen these letters prior to the proceedings before the Adjudication Officer.
Having carefully considered the oral and written submissions and accompanying documents, the Court concurs with the findings of the Adjudication Officer and accordingly upholds his Recommendation and rejects the Complainant’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
17th October, 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.