ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001074

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946	CA-00001433-001	12/12/2015

Venue: WRC Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 13 of the Industrial Relations Act, 1946 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant has been employed since 13^th September 1982 and now works as an Escalations Supervisor. She is paid €70,000 per annum. She has claimed that the Respondent has failed to properly investigate her grievance and in turn failed to apply fair procedure in investigating a compla8int against her.

Complainant’s Submission and Presentation:

I have been accused of bullying by a former employee of the Company, who made the complaint against me several months after they actually left the Company. I recognise and accept that this matter must be investigated by the Company. However, since the alleged complaint against me was received, apparently by HR, there have been a number of highly irregular actions and events undertaken by HR and Line Management that relates directly to the manner in which the Company then set out to investigate these matters. I say these actions and events not only are at complete variance with fair procedure and natural justice but are highly questionable and disturbing in any context. Consequently, the effect is that my position and defence in this matter has been wholly undermined up to the point whereby my health and wellbeing has been very seriously compromised and adversely affected. To date the Company has sought to ignore my very legitimate concerns in this regard and have even refused to allow their own selected independent investigator review these concerns in the context of an impartial independent investigation that they themselves have set up. I say the situation is wholly irregular and highly questionable, all of which is having a deep effect on my wellbeing, as well as undermining my defence, which if I am allowed to properly present is robust and sound and includes but is not exclusive to documented evidence relating to the inactions of senior managers within our organisation. The Company are now seeking to attempt to commence a new and amended investigation but further remain to steadfastly refuse to provide me with very basic information directly relating to the allegations against me and so critical to my defence, or to provide any explanation as to their highly unusual actions, relating to me and at least one witness in the context of the original aborted investigation, the effect of which is and remains devastating to me both in the context of my wellbeing and my defence. I reiterate my acknowledgment that the complaint against me must be investigated and I accept this. However, the treatment of me by my employer and the associated motivation for these highly questionable actions undertaken by my employer on foot of receiving alleged complaints against me remains removed from any kind of query or challenge despite their continuing and direct impact on matters. I will forward example of these concerns to the WRC on foot of receipt of case reference code, as appropriate and as provided for in new adjudication procedures of the Industrial Relations Act. Given the ongoing impact on my health and reputation and given I wish my Company to properly investigate the allegations against me consistent with the Health & Safety Authority (HSA) guidelines and provisions on such investigations then I would greatly appreciate if this matter could be prioritised by the WRC. She is seeking that an external investigation is carried out into allegations made against her which applies fair procedure and adherence to the HAS Code of Practice, that the Respondent acknowledges that the concerns expressed by her are legitimate, that she is transferred to another part of the company away from the current management team, that she is re-instated to the full sick pay scheme and that she is paid two years’ salary for suffering caused and financial losses incurred.

Respondent’s Submission and Presentation

A former employee made a complaint against the Complainant in June/July 2015 and sought a formal investigation through the company procedures. The Complainant was advised that the matter was at an investigation stage. She was given a copy of the complaint and the terms of reference to be used. She was invited to attend an investigation meeting on 31^st August 2015. She did not attend and has been out sick since. On 10^th September she wrote to the Respondent expressing her concerns about how the process was being conducted including her concerns about the terms of reference. The Respondent replied and advised as she intended to use members of the investigation team as witnesses then the investigation would now be given to an independent third party to investigate the complaint. She met with the External Investigator on 16^th November and was accompanied by a Representative. She raised a number of matters which fell outside of the scope of the investigation. She was advised that she could use the grievance procedure to deal with these. On 7^th December she wrote to the Respondent expressing her disappointment with how matters were progressing and that she 8intended to refer the matter to the Workplace Relations Commission. The Respondent replied in an attempt to clarify the position.

It is the Respondent’s position that they were obliged to investigate the complaint that was received from a former employee. Given her concerns they stood down its own investigation and appointed an external investigator. She has repeatedly sought to combine her perceived issues/grievances with the complaints made against her. She has been advised to use the company grievance procedure to address her grievances. As she has referred this matter to the Workplace Relations Commission before the conclusion of the investigation then this process is on hold. No findings have been made under this investigation. The external investigator should be allowed to conclude the investigation. The Respondent has a right and an obligation to conclude this matter. The Complainant has the right to then invoke the policies is she sees fit to do so.

Findings

I note that the Complainant has had a long series of difficulties with the former employee who made a complaint against her.

I note that on 27^th November 2014 the Complainant wrote to her manager requesting a formal investigation into alleged bullying by this person who subsequently made a complaint against her.

I note that no investigation took place.

I note that this former employee made a complaint against the Complainant and the Respondent set about to investigate that complaint.

I find that an employer is obliged to investigate a complaint.

I also note that the purpose of an investigation is to establish as a matter of fact whether the complaint is upheld or not. It is not a disciplinary investigation; it has to be decided if there is a case to answer and if the matter should be escalated to a disciplinary hearing.

I find that in this case the Complainant became confused about the process and was concerned about her grievances against the former employee, which she believed were not addressed by the Respondent.

I find that terms of reference were not agreed between the parties, which have given rise to a lot of confusion.

I note that the Complainant went out sick shortly after being advised of the complaint made against her.

I note that considerable confusion emerged following this and rather lengthy correspondence was exchanged.

So rather that have this complaint investigated it became entangled with the Complainant’s own grievance with her accuser.

I note that the Respondent stood down its own investigation when the Complainant advised that members of the investigation team would be called as witnesses.

I note that they appointed an External Investigator.

I note that when the Complainant met with the Investigator she raised a number of matters that were deemed outside the scope of that investigation and referred her to the grievance procedure.

I find that if terms of reference had been agreed between the parties then the Complainant would have been able to include her concerns about her accuser.

It is clear that the Complainant has had major difficulties with her accuser in the past and for some unknown reason the Respondent did not investigate her grievance.

The investigation by the External Investigator could have addressed most if not all matter because they are intertwined.

I do not accept that the Complainant’s issues regarding the investigation required a separate investigation.

I find that the Respondent failed to address these matters of concern and complaint by both persons in a systematic and comprehensive way.

I find that this has contributed to the Complainant’s absence from work.

I note that the Complainant is a long serving employee and holds a supervisory position with commensurate salary.

I note that the alleged perpetrator left the employment and so was not a threat to her.

I find it difficult to understand why the Complainant has not returned to work sooner.

I note that she has been paid in full to 1^st February and was on half pay to 1^st July.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under section 13 of the Industrial Relations Act, 1946 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I recommend that the complaint made against the Complainant and her complaint against the alleged perpetrator and how it was handled by the Respondent should be dealt with as one investigation.

I recommend that terms of reference should be agreed between the parties prior to the investigation commencing.

I recommend that the Complainant should engage directly with the investigation and confine her written comments to very brief and concise statements.

I recommend that an external investigator should carry out this task in a speedy fashion.

I recommend that the Respondent should accept responsibility for the confusion that led to the delay in the investigation.

I recommend that the Respondent pays the Complainant compensation of €3,000 for its contribution to the delay in having this matter concluded in a timely fashion.

This is to be paid within six weeks of the date below.

Dated: 1^st September 2016