ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001715

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 11/10/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 13 of The Industrial Relations Act, 1969, Section 28 of the Safety Health and Welfare at Work Act, 2005 and Section 6 of the Payment of Wages Act 1991, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Complainant’s Submission and Presentation:

The Complainant was employed as a Unit Manager at the respondent catering company on 16 October 2014. The complainant submitted that she came to be bullied, harassed and intimidated by a member of her team, Ms T.

On 26 February, 2015, Ms T made allegations of bullying and harassment against the complainant .These were not upheld by the Respondent.

On 17 June 2015, the complainant made a complaint by email to the HR Team that she was being bullied, harassed and intimidated at work by Ms T.

On September 11, 2015, the complainant recorded her concerns regarding Ms T with Hr as she feared a knife attack from her.

The HR Team advised the complainant to address Ms T’s behaviour as her Manager and to rely on the support of the Operations Manager .A follow up call was planned on the return to work of the Operations Manager.

This was followed by a period of uncertainty

On October 6, 2015, the complainant submitted a formal complaint under the company Dignity at Work Policy citing the collateral for the complaint as that contained in the 17 June email. She met with HR on October 20. This was followed by an email from Mr HR 1 confirming that the complainant’s complaint had been withdrawn. The complainant clarified this by rejecting that she had withdrawn the complaint.

The Complainant submitted that the HR pressurised her to withdraw her complaint, which she eventually agreed to on November 23, 2015.

The complainant sought help and supports in her management role in the wake of this issue, but none was forthcoming from the respondent. She did undertake a 3 hr duration human resource course but this was insufficient. The complainant became unwell and had to take a two week period of sick leave on or about 25 January- 15 February, 2016. On her return to work, she continued to feel undermined and made a formal complaint under the Dignity at Work Policy on 26 February, 2016.

On March 10, Mr OM1 offered the complainant a transfer to another site. This was unacceptable to the complainant, as it was viewed as a demotion by her.

The formal complaint was investigated by Ms HR 2 and concluded in 15 overall conclusions on 24 June 2016.The complainants Solicitors summarised the document as a “difficult read” directed at Ms Ts removal from the workforce which was judged at meeting the complaint. This was denied.

The recommendations

1. Hr to improve on accuracy to correspondence and issuing of documentation.

2. Further training for the complainant in confidence, resilience and ability to manage difficult situations at Unit level

3. Consideration of short term transfers in the face of difficult situations

4. Any difficult people management issues to be raised by the complainant with Mr O until October 1, 2016. This would revert to the company standard procedure after that date.

The complainant appealed the report on 28 June, 2016. The complainant submitted that the report was upheld . The complainant detailed significant trauma as a direct result of her experiences at work in 2015 and 2016 which had spilled into and disturbed her family life .

1 Industrial relations Complaint: CA-00002284-001

The complainant sought an investigation of the Trade Dispute so that the complainant might perform her work duties in the respondent’s workplace without fear of bullying, harassment, intimidation or victimisation, accompanied by support and guidance from the respondent.

2 Safety, Health and Welfare at Work Act, 2005. CA-00002284-002

The complainant sought to bring her workplace issues to the respondent’s attention from June 17 2015. This included making a formal complaint under the Dignity at Work Policy .The complainant submitted that the senior management and Hr team refused to adequately deal with the complainants workplace difficulties and the complainant was actively encouraged to withdraw the complaint on the promise that her workplace difficulties would improve, which did not happen.

The complainant submitted that this constituted penalisation contrary to section 27 of the Act and this penalisation were continuing due to her request for help and support being overlooked, the refusal of the company to grant the complainant a pay increase and by being offered a demotion by the respondent. The complainant sought to address issues with the help of her solicitor but the respondent did not engage .The complainant contended that that the respondent had failed to resolve the complainant’s workplace difficulties or adequately protect the complainant’s health and safety in the workplace which amounted to penalisation. The

3 Payment of Wages Act 1991, complaint CA-00006235-001

The complainant’s representative submitted that the respondent site was profitable .The respondent agreed to raise the salaries of two chefs at the complainants request on 4^th and 6^th July, 2016. The complainant requested a pay rise for herself and was refused; the complainant linked this to the respondent not taking kindly to complaints which she had made about a very dangerous and stressful workplace.

The complainant sought compensation for the breaches of legislation.

Respondent’s Submission and Presentation:

On April 3, 2015, a formal complaint of bullying and harassment was made by Ms T against the complainant. The respondent conducted an investigation into the complaint by Mr HR 1 .This involved interviewing 12 people and 22 separate interviews.

On June 18, 2015, the respondent received a counter complaint from the complainant against Ms T. Mr Hr 1 met with the complainant and advised her that the issues she had raised were already the subject of his ongoing investigation and gave her the option of having her complaint dealt with in the context of his ongoing investigation . The respondent understood that this was agreed .The final report issued, incorporating the complainant’s commentary on September 22, 2015.

The Report made no adverse findings against the complainant and recommended that Ms A be relocated. This occurred post an appeal on November 9.

The respondent received a thank you note submitted by the complainant.

On October 6, the complainant wrote to Mr Hr 1 requesting that her email of June 17 be subject to investigation .It was referred to as a protected disclosure. This confused the respondent. Eventually post discussion with the complainant ,she withdrew the complaint on November 23 .The respondent received a request from the complainant for help in dealing with staff as her confidence in herself had suffered as a result of the events of the previous year. The complainant was given training and offered paid time off.

On January 25, 2016, the complainant wrote to Mr HR1 advising of her stress related sick leave .The following day the first two claims were lodged with the WRC. The respondent received a request from the complainants Solicitor for local mediation. The respondent was prepared to mediate via a WRC appointed mediator but this did not materialise. The complainant notified the respondent that she was deemed fit to return to work on February 12, 2016. The complainant was referred for an Occupational Health Assessment in March 2016 and the respondent submitted a copy of the Report. .

The respondent received a complaint on behalf of the complainant under the Dignity at Work Policy on March 4^th. Ms Hr 2 was appointed to investigate the complaint .The final report was issued on June 24 2016 with the following findings:

1 The complainant had been completely vindicated in the original report

2 The investigation was professional and thorough

3 Significant supports had been put in place for the claimant

4 appropriate disciplinary actions had been taken against Ms T as a result of her behaviour towards her colleagues (including the complainant).

This report was appealed by the complainant on July 26 .The outcomes was issued on September 2, 2016 and upheld the findings and conclusions in Ms HR2s report.

Claim under Industrial Relations Act

The respondent disputed the complainant’s contention that HR had refused to deal with her complaints .They confirmed that some shortfalls in the process of investigation were identified but these did not alter the overall correctness of the process. The June compliant was considered and addressed in the course of the first investigation by Mr HR 1 . The respondent submitted a copy of a thank you note from the complainant to Mr HR 1 dated 25 September, 2015 which confirmed her awareness of his investigation and her appreciation of his support .They submitted that this proved that the complainant was satisfied with the 2015 investigation at the time. The final report had issued on September 22, 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and Dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. , Section 13 of The Industrial Relations Act ,1969, Section 28 of the Safety Health and Welfare at Work Act, 2005 and Section 6 of the Payment of Wages Act 1991,

Industrial Relations Claim: CA-00002284-001

I have investigated this Dispute by considering both parties written and oral submissions .The complainant is seeking a safe place to work free of bullying and harassment. The respondent is committed to working towards that goal.

There are significant legacy issues contained in this case .The complainant commenced work in October 2014 and began to experience interpersonal issues mainly centred on the interactions of Ms T from Spring 2015. Both parties accept that the first investigation into complaints of bullying against the complainant took its toll on the complainant.

This is supported by the complainants repeated contention that she had lost confidence and needed further help and support in her role .It was clear that she found her role as Manager during the first investigation and in the immediate aftermath of the first report to be very challenging.

From the respondents perspective , they presented as wholly committed to supporting the complainant via additional training and the nomination of a certain Manager to offer her support .I found that the complainant was traumatised following her experience of the circumstances, content and outcome of the first investigation into complaints of bullying against her .

This is not unusual following an in-depth investigation of a complaint , however, I am not satisfied that there was adequate 1:1 support available for the complainant given the proximity of the HR Manager, Mr HR 1 , ( the complainants chosen source of support ) to the investigation . It may have been preferable to appoint a support contact person for the complainant who was not visibly linked to the investigation. It is not lost on me that the complainant was required to “ keep the show on the road” during the investigation and she was clearly faced with a number of hostile encounters from Ms T until she left the workplace .

I considered the respondents Bullying and Harassment Policy and found that the company departed from their Principles Governing the Investigation Process where:

“The Investigation will be conducted by 2 impartial investigators who will be appointed by Human Resources “  

The first investigation was conducted by Mr HR 1 and it is of note that the complainant expressed dissatisfaction initially with his role which turned to gratitude once the report was released in September 2015. I have found that the events that led to the first investigation were indeed extraordinary and all consuming from the complainants perspective and I accept that the respondent was equally concerned .Yet the investigation was conducted by 1 Investigator .In addition, the company outlined that both Ms Ts complaint and the complainants complaint against Ms T would be managed collectively . This was a sub optimal and unrealistic approach.

The complainant withdrew her complaint against Ms T on November 23, 2015. She made a formal complaint under the Company Dignity at Work /Bullying Policy on March 4, 2016.^” regarding he

r” bullying and hostile environment at work”. This seems to have been condensed to a two point terms of reference and described as a grievance .

The process followed and time taken for closure of Ms Ts allegation

The lack of formal response to the complainant’s original grievance email of 18 June 2015.

The complainant was dissatisfied with the findings of the investigation and appealed the outcome where a number of operational issues were commented upon, but there was no change to the Final Report.

I found that a chasm had developed between the respondent and the complainant. I make the following comments in relation to this:

1 The complainant was clear that she was disatisfied in her interface with the first investigation.  These concerns were addressed by Mr HR 1 who was undertaking the investigation at the time. The complaint in email format was also copied to Mr OM1, the complainant’s line manager and sought to be released from working with Ms T. This transfer took place on November 9, 2015 post the release of the report and the appeal by Ms T had been exhausted.

I find that there was an over reliance on the formal procedures associated with investigation and the individual submissions of the complainant were not prioritised. I am at a loss to understand why the respondent did not diversify on the management support for those involved in this highly complex case?. It was impractical to consider that one HR Professional could manage both sides of the coin in this regard.

2 The Company Dr issued a comprehensive Medical Report on 11 March 2016 where he recommended that the employer engage with the complainant in an attempt to address any work related issues. I could not establish any details of an outcome from this direction. Instead, it seemed that all eyes were on the investigative process and both parties viewed this as the sole panacea to the troubled period.

I have heard from both parties on their preferred outcome to this Dispute. I find that role demarcation was a central issue in this case. I find that the Human Resource service was under resourced to address the enormity of the workplace conflict during 2015. The complainant was an appointed Manager and observed what she understood to be horizontal bullying .The situation was eclipsed by the departure of Ms T, however the workplace was clearly fragile at that point and it may have benefitted from a Group debriefing rather than the complainant holding the view that she had to carry all the fall out on one pair of shoulders. It is clear from the documents that there was a broad organisational dissatisfaction with the role played by Ms T.

I find that the respondent did undertake a concerted effort to remedy the fall out from the first investigation report and did try to set the record straight through the second report; however the company departed from its own investigatory procedures and did not act promptly on the Occupational Health Report of March 2016. I find that the complainant may have given mixed messages to the respondent on the standing of her letter of June 17 2015 which in turn delayed the opportunity for an earlier management intervention. I also find that the letter of complaint of February 26, 2016 received by the respondent on March 4, 2016, may have been condensed into a mutually agreed terms of reference for the second investigation which, on hindsight the complainant regretted. It is clear that there was mutual agreement.

Recommendation:

1. I. find that the complainant should be allowed immediate access to a supportive action plan to address her crisis in confidence .This should be framed as identified by Ms HR 2 final report .This situation should be kept under three month reviews by both parties . In particular , I recommend strongly that the both the line manager and the complainant meet weekly to rebuild trust and confidence and identify appropriately agreed trigger events for involving Human Resource Department in operational issues.
2. The complainant is permitted a refresher on utilisation of the grievance/disciplinary procedures and the bullying procedure to enable her to have confidence in activating these procedures both as a Manager and as an employee.
3. The complainant to be given a period of 10 paid days leaved to assist her recovery. This is external to her annual leave bank.
4. I order the respondent to pay €5,000 in compensation to the complainant for the distress and trauma caused to the complainant and to assist closure on a very difficult part of her working life. I am satisfied that the complainant wants to invest further in the company’s high performance and needs to be free of legacy issues
5. I make a respectful suggestion that the respondent consider the provision of a trained Support contact person to both parties in any future investigation involving the complainant.

The complainant made her complaint to the WRC on 27 January 2016 .This was in advance of lodging of her formal complaint in early March 2016 and the Occupational Health Report. I have found that I should for the sake of completeness and pragmatism, include the events referred to up to the day of hearing .I have based my recommendations on that period of time.

Two weeks after the hearing, the complainant submitted that the complainant was being placed into a disciplinary situation by her employer and sought inclusion of the events in my investigation. The respondent sought that this matter be excluded from my report as it was not linked to the circumstances of the 27 January complaint. I have decided not to accept the latter day submission in my investigation.

Safety Health and Welfare at Work Act, 2005 CA -00002284-002

The complainant contends that she was penalised for taking a protected action under the Act in relation to raising a request for assistance in resolving workplace issues with the HR Dept. on 17 June, 2015, making a formal complaint under the Company Dignity at Work Policy, which she was encouraged to withdraw which resulted in a period of sickness.

My role as an Adjudicator under the Act is to determine whether or not an employer has contravened the provisions of Section 27 of the Act, which provides protection for employees against dismissal, penalisation or threatened penalisation by employers where the employee is acting in good faith in the interests of health and Safety .Penalisation is defined as:

Protection against dismissal and penalisation.

27

7. —(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

……..

I have considered the submissions of the party’s .It are clear that the complainant raised concerns for her health, safety and welfare at work from June 2015. During this period she was also actively engaged in responding to complaints of bullying made against her by Ms T which were not upheld .I cannot establish that she was denied a pathway of resolution by the company. As stated in the earlier decision, I found that the company was intent on seeking to resolve a difficult situation, albeit it got bogged down on the enormity of the tasks and the presence of two live complaints of bullying in 2015 and 2016.

I cannot ignore that on receiving the positive result of the bullying complaint against her, the complainant was fulsome in her praise and gratitude to the Author of the report. The respondent did not; in my opinion ignore her complaint of 17 June. Instead, I find that the company believed that the matter was under active consideration and rightly or wrongly was understood to be incorporated in the body of the complaint against the complainant

I appreciate that from September 25 to the date of the complaint January 27, 2016, the complainant was very unhappy at work and that a large amount of trauma post dated the report, however I must accept that the confirmation of the withdrawal of her complaint made on November 23, 2015 had standing. I did not find evidence of coercion in this regard.

I accept that the respondent offered Employee Assistance support and activated an investigation on foot of the complaint lodged on March 4^th 2016, which referred to the earlier statement of concern on health and safety issues.

I have dealt with my perceived procedural anomalies in the investigations in the Industrial Relations Act complaint.

In O Neill V Toni and Guy Blackrock ltd [2010]21 ELR 1, The Labour Court identified that the

“ detriment giving rise to the complaint must have occurred because of or in retaliation for the complainant having committed a protected act .”

Mr O Neill had come under scrutiny by his employer for issues which had not previously been a source of difficulty and the Labour Court held that he had proved penalisation under the Act. He had submitted a complaint regarding concerns for his health and safety at work.

In An Garda Siochana V Hazel Delahunt [2014] 25 ELR 130, The Labour Court held that an appeal lodged by a Sergeant could not succeed as:

The act or omission of the employer on which a claim of penalisation is grounded must amount to a detriment in the claimant's terms and conditions of employment and an action that merely has the potential to lead to such a result is not sufficient.

I find that the complainant pointed to a chain of events following the lodgement of her statement of concern on 17 June 2015 up to the date of hearing in October 2016. At the time of her complaint to the WRC in January 2016, the status of her complaint was withdrawn, both parties accepted this.

I accept that the complainant was feeling vulnerable both as a Manager and an employee as a consequence of the aftermath of the first investigation of complaints of bullying during autumn and winter 2015/2016. However I cannot identify a detriment in the claimant’s terms and conditions of employment during this period. I find that the company genuinely wished to assist in a resolution as evidenced by a letter from the Director of Human Resources dated 15 March 2016. I am also guided in my findings by the repeated affirmation that the respondent was prepared to attempt mediation under the WRC. I note that the complainant’s line manager proposed relocation to the complainant; this was not advanced once the complainant turned down the offer.

I must, therefore conclude that Section 27 of the Act has not been breached and the complaint is not well founded.

Complaint under Payment of Wages Act 1991 CA-00006235-001

The complainant lodged this complaint with the WRC on 27 July 2016 .It referred to a non payment of wages on 4 th July 2016. The complainant submitted that she was denied a pay increase because of the presence of internal and external complaints .I have considered both parties submissions on this matter .

I examined the complainant’s contract of employment, which was silent on a provision for a pay review or a pathway for salary progression. I accept that the complainant submitted a case for a salary increase for two members of her team and these were granted. I could not establish any connection between the complainants being denied a pay increase due to complaints she had made at the company. Instead, I prefer the respondent contention that they were prepared to review the request based on the improved financial standing of the company. I note that this issue was not progressed through the company grievance procedure in the first instance.

Section 5 (6) of the Payment of Wages Act, 1991 provides that:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

I cannot establish that wages properly payable were withheld from the complainant .I find the complaint to be not well founded and I find in favour of the respondent in this regard.

Patsy Doyle, Adjudicator.

Dated:   30^th January 2017