ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003471

Dispute for Resolution:

Date of Adjudication Hearing: 28 September 2016 and 3 January 2017.

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

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

Complainant’s Submission and Presentation:

The claimant had worked as a Fitness Instructor at the respondent Sports Complex since August 2009. He submitted that he had been exposed to bullying, intimidation and aggressive behaviour at work. He referred to an incident which occurred in the car park of the Sports Centre on June 4, 2016 where he feared for his personal safety.

He submitted that he had been the target of an unprovoked verbal and physical assault by a colleague, Mr A which had caused him enormous upset .He submitted that he had to rely on the presence of two colleagues to intervene to maintain his safety on that day. He also referred to previous similar incidents which occurred before he submitted his claim, which he had “let go”.

He summarised his complaint

“I will not this this time be told just to avoid Mr A, .I am not going to work in a place where I feel that I have to avoid someone and feel I have to look over my shoulder in case I get attacked, so I will demand Mr A is removed from working in complex permanently both a Gym Instructor and a Class Trainer. ………”

On the day of the hearing , the claimant described that he continued very troubled and fearful of Mr A.

Respondent’s Submission and Presentation:

The respondent opened their submission by drawing the attention of the Adjudicator to the fact that the claimant had referred his claim to the WRC just two days after the reported altercation with Mr A .They submitted that they had not been given an opportunity to investigate the complaint by June 6, 2016.

The respondent first learned that the complainant had a difficulty working with Mr A on November 20, 2013.He told the Manager that “ he was not happy if he has to work with Mr A, clash of personalities “.

In December 2014, the respondent received a report of two incidents involving confrontations between the complainant and Mr A. These were resolved by means of an action plan.

The respondent submitted that the incident involving Mr A and the claimant was taken very seriously by the Complex and an investigation was commissioned into the incident .The claimant was offered representation .The investigation was described as a

“Fact finding and clarification meeting on foot of the complaint issued by the claimant “.

On 20 September, 2016, The Investigator issued his interim report .He found that an altercation did take place between the parties. He recommended mediation. The respondent submitted that the Investigator was due to attend the hearing but had experienced bereavement and was unable to do so. The respondent informed the hearing that Mr A was on sick leave.

The respondent had introduced a Grievance Procedure to the Sports Centre and they were keen that the claimant would utilise this procedure in the first instance.

It was the respondent stated wish that the claimant would agree to a mediation process without prejudice to his exercising his rights at a third party.

Outcome of Day 1 of Hearing

The parties agreed to a short adjournment to allow for a trial of Mediation between Mr A and the claimant. The respondent agreed to the appointment of a Support Contact Person for the claimant.

Resumed Hearing Date, January 3, 2017

The claimant did not attend the second day of hearing. The respondent was in attendance .They submitted a chronology of correspondence covering the adjournment period which confirmed that the Support Contact Person had been appointed . Mediation between the parties was attempted and recorded as mutually successful .

The respondent Manager submitted an extract from notes of meetings dated 16, November, 16, 2016 in relation to the parties to mediation:

“ They told her that she needn’t worry about them anymore and they would leave everything that happened in the past behind them and move forward and were looking forward to getting along and being able to come in to work and not avoid each other “

The respondent sought closure on the complaint on 15 December. The respondent submitted that the claimant had intimated that he intended to keep the complaint live for a few years to protect his position. They also contended that the claimant had introduced a pay claim into the mix.

The respondent sought that the claim be dismissed on the grounds that a settlement had been reached between the parties on the core subject at the centre of the claim before the WRC , that of the interpersonal difficulties between the claimant and Mr A .

Recommendation:

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

I was disappointed that the claimant chose not to attend the hearing on January 3. After the hearing, I wrote to the claimant advising him of the feedback received from the respondent and inviting comments in response before the end of the week. Nothing was received from the claimant. There is no provision in this claim for any matter external to the events of June 4^th at the Sports Complex.

I must find that in the absence of the claimant at the January hearing, the case falls for want of prosecution.

Dated:   18^th January 2017