FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ZEHNACKER IRELAND HEALTHCARE (REPRESENTED BY STRATIS CONSULTING) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Unfair investigation.
BACKGROUND:
2. The case concerns a management led investigation. The Claimant said that the investigation that was carried out by the Company was unfair.
The Employer's position is that a number of serious allegations were made by a colleague against the Claimant. The colleague did not wish to invoke a formal
complaint under the Dignity at Work Policy. However, given the seriousness of the matter it was decided to carry out a full management led investigations into the allegations.
On the 13 June 2017 the Worker referred his dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 8 August 2017.
WORKER'S ARGUMENTS:
3. 1. The Claimant was not given any terms of reference of the investigation.
2. There was no evidence to prove the allegations against him.
3. The comments complained of were part of a general conversation and the Claimant apologised to his colleague for any unintentional hurt.
EMPLOYER'S ARGUMENTS:
4. 1. Given the serious nature of the allegations made, it had no option but to initiate a management led investigation into the matter.
2. Eleven staff members were interviewed and the Claimant was given a copy of the allegations and copies of the statements.
3. A disciplinary hearing was held which resulted in a final written warning been given to the Claimant. He appealed the Decision to the CEO who upheld the Decision.
RECOMMENDATION:
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and concerns a claim that an investigation carried out by the Company into complaints of alleged racist and culture based comments lacked procedural fairness. The case before the Court was taken by a Claimant who became the subject of a disciplinary sanction following the investigation.
Following a complaint to management in August 2016 by an employee who alleged that racist and culture based comments were made to her, the Company carried out a general investigation in the issue. On the completion of the investigation, the Claimant was found to have behaved in an inappropriate manner and as a result was given a final written warning, which will expire on 4thOctober 2017.
The Court notes that the Complainant did not deny a significant proportion of the comments made but maintained that were not made to offend or insult his colleagues. He said that“there were slagging one another, a bit of banter”.
The Company denied the allegation that fair procedures were not applied in the investigation. At the disciplinary meeting held on 21stSeptember 2016, the Claimant raised a number of points which he felt required further investigation. As a result a number of witnesses were re-interviewed.
The Company declined to attend a hearing before an Adjudication Officer of the Workplace Relations Commission; however it offered to have the case reviewed by an independent external expert. The Claimant declined to avail of the offer. The Company stated that given the serious nature of the allegations made it had no option but to initiate a management led investigation into the matter, for that reason it decided that a formal investigation should be carried out despite the complainant’s request for an informal approach. As a result of the investigation, the Company held that by the Claimant’s behaviour he had placed his continued employment at risk, however it decided to be lenient and accordingly issued him with a final written warning instead of terminating his employment.
Since the process concluded the Court notes that the Claimant and his colleague (who made the complaint) have since sorted out their differences. The Claimant apologised to her.
The Court is of the view that once a complaint of this nature was made, whether formally or informally, it was incumbent on the Company to carry out an investigation, to ensure that such behaviour is not repeated. To suggest that such incidents as were complained of, were in the form of simple “banter/slagging” within the workplace is not an acceptable defence. The Company had a duty of care to ensure the dignity at work for all employees who have a right to a work in environment free from any form of harassment. The Court is satisfied that the Company exercised that duty by initiating an investigation into the matter and acted promptly in the exercise of its duty.
The Court does not find that the disciplinary action taken against the Claimant was unreasonable in the circumstances, taking account of the Claimant’s admission of the events and the explanation given by him for his behaviour and his continual denial that his behaviour was anything more that "banter".
The Court notes that following the investigation, the Company has taken remedial actions to enforce respect for the dignity of all employees, particularly as it employs a multicultural workforce.
Having considered the oral and written submissions of both parties, the Court does not find in favour of the Claimant’s claim. The Court supports the actions and sanctions taken by the Company and does not find that the process lacked procedural fairness.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
10th August, 2017Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.