ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004532

Complaint for Resolution:

Date of Adjudication Hearing: 23/11/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 Industrial Relations Act , 1969 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.. 

Respondent’s Submissions:

The CEO left in October, 2013. The complainant was acting CEO from October 2013 to September, 2014. A new permanent CEO was appointed in September, 2014. He decided that he wanted to carry out a review of the organisation’s accounts. During that review he noticed some expenditure on a company credit card that warranted further investigation. That credit card was under the care and control of the complainant. It was discovered also that the respondent’s policies and procedures in relation to credit card use were not up to standard. As a result of that it was decided that no further action would be take on the matter. The complainant was informed of that by letter. New policies were drawn up and were given to all staff in or around February, 2015. From this point onwards the relationship between the CEO and the complainant began to deteriorate. The complainant wrote to the Chairman of the Board expressing her dissatisfaction with the investigation in relation to the credit card issue. The respondent replied stated that the investigation was over and no further action would be taken. The complainant’s relationship with the CEO continued to deteriorate, so much so, the Board decided to get an independent person to facilitate talks between the two parties. It was also suggested that she attended with an Occupational Health specialist. A board member was appointed to act as facilitator.

On the 12^th February the complainant wrote to the CEO complaining that she found his use of language intimidating.

“Can you imagine how it feels to have your good name besmirched with the suggestions of wrongdoing in the finances and more importantly can you imagine what that would be like for XXX as a finance professional? The whole thing has been horrible and I had the most miserable Christmas as a result. My efforts in alerting you to the stress that I have been experiencing went completely unacknowledged. For the life of me, I do not under stand what the motivation in doing this was and I’m not the only one who is wondering. In my work as I have no idea where this could end. It really really was a sledgehammer to crack a nut and I’m left feeling intimidated and I am frightened to make even the smallest error. People are left feeling wounded, hurt, demoralised and threatened …….”

The complainant submitted a sick certificate in May which stated “work related stress”. She returned in August. It was suggested that she revert back to three days a week. She was happy to do this but wanted her issues with the CEO dealt with.

On the 18^th June, 2015 the complainant lodged a formal complaint against the CEO. The complaint consisted of the following:

• Singled out for unfair treatment

• Exclusion and isolation

• Interference with my job

• Intimidation and Harassment

• Cause of stress resulting in ill health.

The chairman of the board replied stating that it would be inappropriate to deal with her complainant whilst she was on sick leave. He did telephone her and stated that he thought she should go down the informal route. She refused and stated her complaint was a formal one.

A mediator was appointed on the 3^rd August, however that proved unsuccessful.

The formal grievance was passed on to an independent investigator in October, 2015. The complainant’s complaint was not upheld. She appealed the decision. A board member, who is a solicitor, heard the appeal. The finding was that there were no grounds of appeal. The complainant then lodged her claim with the WRC.

The Board decided that it would be better if the complainant remained out of the work place. She was placed on sick leave in August, 2015, even thought she was certified fit to work. She was paid. The respondent was at a loss to know what to do next. They felt it better that they keep the complainant and the CEO apart. To date the complainant is still at home on ‘sick leave”. She is still certified fit to work and is still receiving her salary.

Complainant’s Submissions:

The complainant started in a job share arrangement. She became the housing operations manager in 2013. The job went well. She was acting CEO from October, 2013 to September, 2014.

Over time the complainant noticed that if anyone disagreed with the CEO he would get very angry. She felt that she couldn’t say anything that was at odds with his opinion for fear that he would get cross with her.

On the 3^rd of December, 2014 the CEO came up to the complainant and stated that he needed to talk to her. He asked that she come into his office. He had a letter on his desk. It stated that there was to be an investigation in relation to her use of the credit card. The complainant was shocked and stunned. She was adamant that she had never misused the credit card. Everything single thing that it was used for had a corresponding receipt and invoice. She was told that there were no receipts for certain items but she knew this wasn’t the case.

When she received the findings of the investigation she felt that it still left issues in doubt. It did state that no further action would be taken but it also stated that there were still matters of contention that would have to be looked at. She was left feeling that something else might come up. The respondent asked her for her comments on the report. She wrote a length letter on that issue in February, 2015

Following that the complainant noticed that the CEO’s use of language when addressing her became aggressive and intimidating. He would shout at her at meetings. She felt very intimidated. She asked if she could be accompanied to their meetings as she no longer wanted to be alone in the same room as him. The CEO said no and stated that in asking for someone to accompany her she had some other motive.

On the 12^th February, 2015 the CEO came over to the complainant’s desk carrying a letter. He rubbed the letter on the area of his genitals and then handed it to her. She was shocked and felt belittled.

On the 23^rd February the CEO had arranged a meeting with the complainant to discuss her views on the investigation report. She had to travel from Kells to Dublin for the meeting. When she got there she was informed that the CEO had just gone home. It did turn out that the complainant had missed a call from him earlier. She called him. He said he needed time to consider her letter. He left her waiting for 11 weeks while he considered it. Around this time she began to suffer from stress, she had chest pains, wasn’t sleeping and generally felt terrible.

27^th April she attended with the Occupational health Doctor. She was diagnosed as having symptoms of work related stress and that her issues should be dealt with.

The CEO then started to ignore her. She asked for the OH report on her but he wouldn’t send it. He said he would send her the relevant parts. She asked the doctor herself for a copy of it. The CEO then sent it. She had e-mailed him 6 or 7 times looking for it.

20^thMay, 2015 she went to her GP. She was certified unfit to work due to stress.

8^th June, 2015 she lodged a formal grievance in relation to the CEO.

20^th July she was informed that her hours were being reduced back to three days a week and that her sick pay was being stopped. She was also advised to attendd with OH.

20^th August, 2015 the complainant returned to work. She called the chairman of the board. During that phone call he told her that the board didn’t recognise her grievance as a formal one but he would get back to her on it. She then discovered she had been locked out of her e-mails. That took two days to resolve. The CEO then told her that the trainer session she had been working on before she went out on sick leave had been finished by him but she wasn’t allowed to go to the session.

She asked about a phased retuned. Her husband had to call the chairman of the board to get him to consider the matter. Then the board said she wasn’t well enough to return and they sent her home. She was placed on authorised leave on the 4^th September, 2015.

After the complainant’s appeal had been heard she attempted to go back to work but the respondent’s solicitor told the complainant’s solicitor that she was not to go back. She was offered a settlement figure to leave the organisation.

The complainant has not been allowed to attend for work since September, 2015 despite being medically certified fit to work.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the complaint dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complainant in this case alleges that she was the victim of bullying and harassment by the respondent board of management and the CEO.

It is now well established in law that Bullying is defined as a repeated inappropriate behaviour, direct or indirect, verbal or physical or otherwise conducted by one or more persons against another person at their place of work or in the course of their employment.

The CEO did not give evidence and was not present for the hearing. The respondent’s witnesses did not contradict the following specific allegations the complainant made against him, namely:

• He shouted at her.

• He used intimating and aggressive language when addressing her.

• He refused to cooperate in relation to her OH report.

• He rubbed a letter on the area of his genitals before giving it to her.

• He intimidated her when they were alone in meetings.

It is outside my jurisdiction to assess the correctness of the findings of the grievance investigation.

The respondent was fully aware of the serious nature of the allegations the complainant had made against the CEO. They did try to resolve the situation by employing a mediator for the parties, they carried out an investigation, they considered her appeal and they sent her to an occupational therapist. When they failed to resolve the situation they decided to exclude the complainant from the work place indefinitely. As they stated in evidence “they didn’t know what else to do as they didn’t want to lose their CEO”. Their course of action directly contradicts the findings in relation to the grievance. If the respondent was satisfied that the complainant’s grievance was without merit and the findings in the report were accurate, there would have been no reason to take any further action. To banish the complainant from the work place indefinitely was not only unfair and procedurally flawed but it also served to destroy the complainant’s right to dignity in the workplace.

I find that the complainant’s claim pursuant to Section 13 Industrial relations Act, 1969 succeeds and I recommend that the respondent pay to the complainant the sum of €15,000.00.  

Dated:   8 February 2017