ADJ-00008135

Complainant

Respondent

Anonymised Parties

A Data Entry Clerk

A Data Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010813-001

12/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010813-002

12/04/2017

The claimant has worked as a Data Entry Special Projects Clerk since 10 January 2006. She works a 37.5 hour week .The Respondent operates a Data storage business.

On 12 April, 2017, the WRC received two complaints from the claimant.

1 That the employer had not investigated her bullying complaint under the provisions of the Code of Practice on Bullying in the workplace.

2 That the claimant was threatened with disciplinary sanction following a mediation agreement.

The claims were disputed by the Employer.

The Claimant provided an outline of her case in both written and oral format .She submitted that she had been the victim of a major bullying incident on 11 February; 2016.This incident had been prefaced by verbal abuses from Mr A, a fellow employee. The Claimant stated that she had made a formal complainant to her Manager, to be forwarded to Human Resource Management in Dublin.

A period of sick leave followed in her case and the matter was addressed by the Occupational Health and Safety Officer on May 3, 2016, without conclusion .The matter was followed up at a HR meeting on May 16, where the claimant asked to be permitted to relocate from her work station, which was in close proximity to that of Mr A.This was agreed and a temporary move followed. On 14 June 2016, the claimant sought that her complaints be dealt with under Section 62A of the Code of Practice on Bullying at work, where an investigation should be conducted by an external third party.

The Company investigated the complaints and concluded that they were not upheld .This was not disturbed on appeal .The Claimant was invited to attend Mediation on 28 October, 2016 .The Claimant had hoped to retain her separate working area as part of this Mediation , buy this was ruled out from the outset .A Mediated Agreement came into being on 9 December, 2016.The Claimant went on sick leave from March 2017 and has not been in a position to return to work since that date .The Claimant stated that she wrote to the company on 11 April, 2017 confirming that she was on sick leave due to workplace stress as result of the actions and verbal threats she had endured following the mediation process .She followed this up on 26 April 2017 and stated that new bullying and harassment complaint were in being and she sought the appointment of an agreed independent investigator in accordance with the company procedure .She also submitted that the mediation had not worked out .

The Claimant submitted a copy of a letter sent to the Company HR Manager on 12 May , 2017 , in it she stated :

1 On 15 December 2016, the company had informed her that she was to return to work in the Projects Office with Mr A .She felt threatened when she sought a guarantee that she would not be met by further verbal abuse from Mr A.

2 The Claimant was requested to meet with the company on 16 December and was denied representation and the meeting did not take place.

3 The Claimant worked off site from 9 January 2017 to 23 March 2017.By then her office equipment had been returned to the Projects Office.

4 A meeting took place to seek to resolve the issue, where the claimant was represented, but did not result in an agreement.

5 The Claimant sought a further Investigation into the contents of the letter and the appointment of an external Independent Investigator.

The Claimant submitted that she was on paid sick leave , soon due to expire and she was facing financial difficulties .She submitted that she could not envisage working in close Mr A again and sought a recommendation to reflect that position . She confirmed that she loved her job and did not want to leave employment .

The Employer presented an outline of their case by way of written and oral submission .The Company employs 90 employees in three locations .The site where the claimant is based has 20 employees .There had been a recent changeover in staff in Management and Supervisor positions .

The Respondent had received the details of the Claimants submission in advance of the hearing and presented a copy of their response one day in advance of the hearing .This was copied to the claimant and she was presented with a copy on the day of the hearing as she submitted that she had not received it in advance .

The Employer outlined that the Claimant was a valued member of the Projects Team who had worked alongside Mr A for seven years. She is one of 5 members of a Project Team, who share one office and has an occasional off site commitment.

The Company had investigated the claimant’s complaint of Bullying and intimidation during 2016.

“The Investigation didn’t find Mr A to be involved in bullying or intimidation .The company arranged for Independent third party mediation between the claimant and Mr A and a mediation agreement was reached.”

The Employer submitted that they acknowledged that there were some communication issues between the parties and had suggested an external mediation process following the claimant’s appeal of the Investigation findings.

The Employer understood that the claimant had agreed to work the Mediation Agreement.

Following this agreement, the claimant walked out of a meeting with her manager and commenced sick leave when she was asked to return to the Projects Office. Her Manager had informed her that if she refused to work as part of a team in the same office as the other members of the Project Team, she may face Disciplinary action.

The Employer submitted that the company is not in a position to relocate the claimant back to working in an Individualised space. This was an accommodation untaken to balance the roll out of the Investigation and the space had now been taken by another Manager. The Company had conducted a number of explorations of alternative location based on the claimant’s suggestions and risk assessments but none were viable. The Employer submitted that there was a Building expansion programme in contemplation, but it was unlikely that a separate office space for the claimant would emerge from these plans.

The Employer submitted that the Claimant held an integral role in the company and the company was keen to find a way forward to ensure her return to work .The Company had provided Occupational Health support.

The Employer submitted that the company also held a responsibility to Mr A and submitted that the company sought a workable way forward which would bring the claimant back to work.

CA -00010813-001 on the Employer Adherence to the Code of Practice on Bullying.

I have carefully considered both oral and written submissions in this case. I am only permitted to investigate events in advance of the date of claim of 12 April 2017.I note that the parties were in correspondence with each other from that date to the date of hearing and a further complaint was referenced but not detailed .

The Code of Practice was generated by the then Labour Relations Commission to offer guidance to both employers and employees on the management of workplace bullying in addressing both the informal and formal procedures. It also provides a useful definition of Bullying.

The Claimant has contended that there were shortcomings in how the Investigation was conducted into her complaints dated February 12 and June 14, 2016, which were not remedied on appeal. She entered Mediation at the suggestion of the company but earnestly believed that she could no longer work with Mr A .She understood that the company would protect her in this as she felt safe working in a separate area and was disappointed to learn that this facility was withdrawn from her.

The Code of Practice set out the following as a guide to how Investigations may be conducted .This is a separate and distinct document to the company’s’ own procedures .

 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.

I have read the documents submitted by the parties and noted that the Company had engaged in an informal procedure to address the workplace difficulties as explained by the claimant in advance of the submission of the formal complaint on 14 June 2016.

I have also considered both parties submissions on how the investigation was conducted. I am satisfied that the Investigation was conducted in line with company policy and the letters drafted by the Investigator dated July 20 and September 12 2016 ,reflects this . I found the projected plans in these documents to be clear and cogent , keeping with best practice .

However, I did not establish that the Company deviated from the WRC Code of Practice on Bullying. The procedures relied on were agreed by the claimant and were inclusive of appeal which found that the complaints were not upheld .The Investigator then proposed a Mediation which was entered into by the claimant and Mr. A to address the residual interpersonal difficulties expressed by the claimant.

I have found that the Investigation has incorporated the guidelines suggested in the WRC Code of Practice on Bullying.

CA -00010813-002 Disciplinary Sanction

I have considered both presentations on this matter and I am satisfied that the claimants fear of working with Mr A lies at the root of the claim .The Employer is on notice of that fear and wishes to provide a safe working environment for both parties going forward but believe they are corralled by spacial limitations and the reality that it is not possible for the parties to avoid each other in the workplace .

The Employer confirmed that the claimant had been advised that Disciplinary sanction may follow her non participation in the Project Team. The Employer did not raise any issues regarding the claimant’s work, Instead they confirmed that her work was much sought after by customers.

I have reflected on this and found that there has been insufficient engagement between the parties as to how the Mediation Agreement of 9 December 2016 was to be incorporated into an action plan.

I appreciate that the claimant understood that she needed representation at subsequent meetings and in light of the circumstances; this should have been permitted in the spirit of trying to move forward.

I accept that the claimant was not faced with Disciplinary action and that the Employer genuinely wishes to have her back to work and moving forward. It is of note that the Claimant received an apology from Mr A. I have found that the relocation of the claimant back to the Projects Office could have been handled more sensitively and creatively .It is clear to me that she lost her safety net and did not recover from this .

I have found that the changes in Management personnel as well as the claimants extended Off site location and subsequent period of sick leave may well have militated against the chances of immediate success for the Mediation Agreement .However , it is clear that there are three signatures on the document and three of the Company managers mentioned as being on notice of the Agreement and I suggest that it is worth revisiting this Foundation document to test viability prior to commissioning another investigation .

The Claimant has reached a red line in her stated desire for a separate work station to Mr A .I find that a concession of this tied into a reactivation of the Mediation Agreement should serve both parties well in terms of a proposed pathway of resolution .

On that basis, I find that there is merit in this aspect of the Dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the disputes.

CA-00010813-002 I have not found merit in this aspect of the Dispute.

CA -00010813-002 I have found merit in this aspect of the Dispute and I recommend the following

1 That the Employer appoints a Manager to oversee the application of the Mediation agreement to the Workplace within 4 weeks of this recommendation .The Mediation Agreement must become “a live working document “inconclusive of progress reports and evaluation by the participants.

2 The Employer should redouble their efforts to relocate the claimants work station to support her participation in the activated Mediation .This could take the form of either

A. Staggered Start and Finish Times

B. Incorporation of a new work station for the claimant in the Office Expansion plans or investment in a specific Modular office/Portakabin pending this expansion .It is clear that the claimant needs this space to facilitate her re-entry to the workforce, this is in all parties interests and should be actioned immediately and reviewed for continuance in tandem with the Mediation review.

3 . Both parties to work on the Occupational Health Department recommendations in the case .

Dated:     31/08/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:Code of Practice on Bullying ,Mediation Agreement .