ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00009569

Complaint:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 CA-00012542-001 17th July 2017     Date of Adjudication Hearing: 8th November 2017Workplace Relations Commission  

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 andfollowing the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.    

Background:

The Complainant was in dispute with the Employer in relation to their alleged failure to deal properly and appropriately with his bullying and harassment complaint and the Employer was denying the complaint/claim.  

Summary of Complainant’s Case:

The Complainant said that the investigation of his complaint carried out by a member of the Board of Directors of the Employer and a HR Consultant was not conducted in a fair or proper fashion, or in a timely manner, the findings presented were incomplete and the Board were not presented with all the facts prior to making their final decision, a decision he was not allowed to appeal. The Complainant said that the evidence of the General Manager, the alleged perpetrator, has not been validated and he said it contains an accusation of wrongdoing against him for which no supporting evidence was sought.   The General Manager also contradicted evidence given by the Complainant and a named Branch Manager but no reason for his contradiction was ever explored.   The Complainant said the General Manager’s evidence suggests that he is an underachieving employee with a bad attitude.   The Complainant said: The General Manager denies threating his employment; but both the named Branch Manager and his own evidence contradicts the General Manager’s version of events.   Within the answer given by the General Manager in response to this allegation is at first he denies the event took (stating “It’s not true”) and then later he goes on to state he might have said something to the Complainant about “there’s nothing holding him”. The Complainant said the General Manager stated he would provide an analysis of staff movements within his evidence, but none was provided.   The Complainant said there is a printout that shows a cross section of movements by staff over a 5 year period, but when the Investigators were requested to compare these against a printout of the Complainant’s movements, they responded that this was noted from his reply.   The Complainant said that if the Investigators had obtained a printout of his movements, they would have been in a position to compare staff movements and it would have shown that the Complainant had been utilised more often than other staff in the named Yard.   The Complainant said that in his submissions in January 2017, he proposed that a roster should be in place in order to ensure the system was fair and in the findings of the Investigators they state that such a roster will be introduced. The Complainant questioned why such a roster would need to be introduced if the current system was found to be fair. The Complainant said that again the General Manager in his evidence suggests that there should be confidentiality in Investigation Meetings and where he is making notes, does not exist for the Complainant unless he asks for the contents to be kept private.   He said that using this logic the General Manager freely admits that he took the contents of that private meeting in April 2016 and relayed them to a named Branch Manager, who 2 days later confronted and humiliated him about this.   The Complainant referred to evidence given by the General Manager, which he took exception to and said was entirely without veracity and should have been highlighted in the Report to the Board. The Complainant said that the General Manager completed a Form that stated the Complainant was; Abrupt with colleagues and customersInflexible as he won’t go to (a named location)Is just about average or below average in most areasThe General Manager states follow up in 2 months time, but he didn’t bother, Why?Job Title: STOREMAN The Complainant said it may just be a coincidence that the General Manager decided to complete this Form just a day before the Complainant said he did not wish to go to (a named location) and in the Complainant’s view, used this Forms to ‘downgrade’ the Complainant’s attributes as a form of punitive action for turning the General Manager down.   The Complainant questioned that if these statements are true, why has he been an employee for 11 years?   The Complainant said the General Manager also states that he had been ‘bad mouthing’ the enterprise to customers, but he offered no evidence to support this claim and none was sought by the Investigators. The Complainant said the General Manager also claimed that he had said that the General Manager had accused him of being a ‘liar and a thief’ a few times.   He said there is no evidence on file anywhere to support the General Manager’s claims and that the Investigators did not seek any clarification. The Complainant said that the Investigators broke the agreed terms of reference on two occasions during the process, as follows: The Complainant said that prior to him being interviewed, a named person was approached and asked about the Complainant highlighting complaints to him previously.   But the terms of reference state that no one was to be interviewed until after he (the Complainant) was interviewed and questioned. The terms of reference state that once the Final Report was issued the Complainant would have to respond to one of the Investigators (the member of the Board), but the letter sent with the Report advised him to reply to another named person. The Complainant referred to the date of an event being discussed in the Investigation and stated it was April 2016 and not April 2014 and that the HR Consultant should have been aware of that fact. The Complainant said that there are plenty of examples of where the Investigators appear not to have bothered looking into evidence or seeking answers to questions raised by him and he quoted examples of this.   The Complainant said that the Financial Controller was contacted by him in order ascertain the way the Respondent’s bullying and harassment is administered, as the Staff Handbook states he is responsible.   He said that surprisingly the Financial Controller refused to answer any questions put to him and informed that the HR Consultant had been handed over this months ago.   The Complainant said that the General Manager stated in his evidence to the Investigators that the Transport Manager is given sheets (these are the scraps of paper presented by the General Manager in his evidence) but are not the dockets he states in his evidence that all orders require in order for stock to be allowed leave the yard.   The Branch Manager, in his evidence, stated that he is responsible for stock in the yard.   The Complainant said the Investigators did not look into this to clarify who is responsible and therefore whose statement is valid. The Complainant said the Staff Handbook for the Employer was drafted by the General Manager and by the HR Consultant.   He said there is no acknowledgement of its implementation date or of employees having signed to state they will abide by its contents. The Complainant said that the outcome of the matter has led him to believe that the Employer wishes to make his employment untenable. The Complainant stated his complaint/claim was well founded and he sought that it be upheld.  

Summary of Employer’s Case:

The Employer said that the Complainant alleges that the investigation of his complaints were not conducted in a professional fashion and that the outcome was unjust to him.   The Employer submitted that all issues raised by the Complainant were investigated in a diligent, objective and thorough fashion and the Report amounted to a reasonable outcome.   The Employer said that the Complainant commenced employment with them on 22nd November 2006 as a General Operative in a named branch. They said that on Tuesday 6th December, the Complainant was told by his Supervisor to take the following day, 7th December, off work as part of time that he had built up as days-in-lieu.   They said the Complainant turned in for work 7th December and he was told that he was not rostered for work for that day and that he should go home.   The Employer said the reason the Complainant was told to take this time off was that he had a lot of days-in-lieu to take. The Employer said the Complainant was unhappy with this decision, he left the premises and he subsequently submitted a medical certificate effective from 7th December stating he was unable to attend work due to “workplace stress”.   The Employer said the Complainant continued to be medically certified as unfit for work over the Christmas period. On 5th January 2017, the named Financial Controller, wrote to the Complainant requesting that he attend an Occupational Health Review, in order to ascertain the likelihood of his return to work in the near future.   A appointment was scheduled for 17th January 2017, this was rescheduled to 7th February at the request of the Complainant. The HR Consultant met with the Complainant on 31st January 2017.   At this Meeting the Complainant stated he had a grievance in relation to the General Manager.   The HR Consultant spoke to the Complainant to ascertain what the issues of concern were and to explain the Employer’s Grievance Procedure and what steps would be taken in order to investigate the Complainant’s grievances.   On 7th February 2017, the Complainant attended the Occupational Health Assessment appointment.   The subsequent Report issued by Occupational Health Specialist stated that the Complainant remined unfit for work and that “dialogue between himself and his employer is an essential component in moving matters forward” to a situation where he could return to work. The Employer said that on 7th February 2017, the letter concerning the complaint was given to the General Manager.   On the same date the Complainant emailed the HR Consultant and the Terms of Reference for the Investigation were exchanged. On 15th February 2017, the HR Consultant emailed the Complainant confirming that the Investigation Team consisting of herself and the named member of the Board of the Employer had been appointed by the Board and wished to meet with him on 21st February 2017 to discuss his grievance complaint. On 21st February the Complainant emailed the HR Consultant with a signed copy of the Terms of Reference for the Investigation.   On the same date the HR Consultant wrote to the Complainant clarifying some of the issues he had raised in respect of the Terms of Reference for the Investigation. A Meeting between the two investigators and the Complainant took place on 7th March 2017 and the Complainant was forwarded the minutes on 8th March 2017. The Complainant then made some further submissions to the Investigation Team and on 23rd March 2017 he finally signed a copy of the minutes of the 7th March 2017 and they were co-signed by one of the investigators on 28th March 2017. The Respondent said that in the ensuing period the Investigation Team interviewed all other relevant employees.   Unfortunately both of the two investigators were on pre-arranged leave on different dates in April 2017, which unavoidably delayed the investigation process somewhat. On 29th May 2017, the Final Investigation Report was sent to the Complainant by the named Chairperson of the Board.   This Report set out the detailed investigation of the 7 issues submitted by the Complainant.   The Investigation concluded that they found on 14th April 2016, the General Manager told the Complainant something to the effect of “If you don’t like it there’s the door” or “If you don’t like your job you know where the door is.” The Investigation Team found that this once off instance did not constitute bullying and harassment.   However as an isolated incident they found that it did constitute an affront to dignity in the workplace.   The Investigation Team made various other recommendation in relation to the working relationship between the Complainant and the General Manager and indeed the working environment in the employment.   They recommended the following: That roster and leave requests should be centralised on a single system for scheduling rosters to include all leave and remove any other calendars That the Employer should develop and use a standard operating procedure for the scheduling of hours of work and leave to include the implementation of a formal leave request and approval system for all employees. In respect of appraisals and ‘job chats’ the Employer should develop separate procedures and documentation for performance appraisals and ‘job chats’ in order to clarify to employees and management what exactly a discussion is related to. To facilitate the Complainant’s return to work the Employer should consider workplace mediation for both the Complainant and the General Manager. On 6th June 2017, the Complainant wrote back to the Chairperson of the Board stating he felt he should be given an opportunity to respond back to one named member of the Investigation Team and he stated that not allowing this amounted to a procedural inaccuracy.   Furthermore, the Complainant stated that he disagreed with the Report’s conclusions; he stated that he felt the Report was not conducted in a professional fashion and that the outcome was unjust. Having given detailed consideration to the Complainant’s comments the Board Chairperson responded to the Complainant on 14th June stating that he and the Board agreed with the outcome of the Report, having examined the manner the Investigation Team conducted their investigations he found the process to be fair and reasonable, conducted within the guideline of the appropriate policies and procedures of the Employer; he further stated that the Employer would be offering mediation as a tool to facilitate the Complainant’s return to work in as prompt a fashion as possible. On 19th June 2017, the Complainant wrote back to the Board Chairperson questioning whether or not he was the Chairperson of the Employment and seeking a meeting with the Board.   On 21st June 2017, the Chairperson again wrote to the Complainant and he asked the Complainant to consult with his GP to confirm if he was fit to participate in mediation with a view to his return to work and he further asked the Complainant to revert by 3rd July if he was willing to participate in mediation.   As he had not received any reply, on 13th July 2017, the Chairperson again wrote to the Complainant asking him to take into account the offer of mediation in order to facilitate his return to work. On 17th July 2017, the Complainant submitted his complaint to the WRC. On 18 July 2017 the Complainant wrote back to the Board Chairperson stating that he would appreciate the opportunity to meet with him and another named member of management to take up the offer of mediation.   The Employer said that unfortunately they could not proceed with this as in the meantime the Complainant had submitted his complaint to the WRC. The Employer said that they conducted a thorough investigation into all issues raised by the Complainant even though they could have determined that too much time had passed to reasonably investigate some of the matters raised in the first instance after more than 3 years   The Employer said that they had appointed the two investigators, who went about investigating all issues raised by the Complainant in a diligent, objective and thorough fashion. The Employer said that the Final Investigation Report did not find that the General Manager’s treatment of the Complainant amounted to bullying and harassment.   It should be noted that the Report was far from one-sided in that it cited that a single issue relating to an incident on 14th April 2016, first reported by the Complainant in February 2017, amounted to an affront to dignity in the workplace.   The Investigators also recommended many changes to reduce the potential for further misunderstanding and ensure role clarity.   The Employer submitted that their Grievance Policy was drawn up in accordance with the S.I.146/200 and that the Bullying and Harassment Policy is in accordance with the HASA Guidelines.   They said the Complainant’s issues were fully investigated in accordance with these policies. The Employer said that on the basis of the foregoing submissions the claims/complaints were not well founded and they should be rejected.  

Findings, Conclusions and Recommendation:  

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute. I have carefully considered the evidence and the submissions made and I have concluded as follows. I note that the Report of the outcome of the Investigation could not by any stretch said to be one sided as firstly one of the Complainant’s complaints was in fact upheld and while one incident cannot be said to be constitute bullying and harassment as defined if was found to constitute an affront to his dignity in the workplace.   However of even more importance are a number of recommendations made by the Investigation Team, in particular: That roster and leave requests should be centralised in a single system for scheduling rosters to include all leave and to dispense with all other calendars That the Employer should develop and use a standard operating procedure for the scheduling of hours of work and leave to include the implementation of a formal leave request and approval system for all employee                -and- That in respect of appraisals and ‘job chats’ the Employer should develop separate procedures and documentation for performance appraisals and ‘job chats’ in order to clarify to employees and management what exactly a discussion is related to.  These changes if adopted and implemented clearly would go a long way to ensuring no repetition of the issues complained of by the Complainant in the future and are plainly in the interests of both parties. I do not accept that there is anything to be gained, by either party, by revisiting the issues dealt with in the Investigation Report.   Indeed primarily (but not exclusively) because of the lapse of time since the incidents complained of, I cannot accept that it would be legally safe to revisit or re-examine the issues at this remove. I further have concluded that it is in the interests of the Complainant to move on from these matters and to concentrate on rebuilding a good employee/employer relationship for the future.     As a full and final settlement of the matter I now recommend as follows. I recommend that the Complainant now accept that there is nothing further to be gained from revisiting the issues dealt with by the Investigation Report and that accordingly he now withdraw his complaints in that respect. If they have not already done so I recommend that the Employer proceed to implement the recommendations of the Investigation Report as set out above. I further recommend that, as recommended by the Investigation Report, and as attempted, but not proceeded with due to the referral of the instant complaint to the WRC, workplace mediation for both the Complainant and the General Manager should now proceed as soon as possible and preferably within 6 weeks of the date of this Recommendation. I so recommend.   Dated:   18.12.17 Workplace Relations Commission Adjudication Officer: Seán Reilly Key Words:   Alleged failure to deal properly with a bullying and harassment complaint.