ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00002778

Parties:

Complaint/Claim:

Date of Adjudication Hearing: 27th June 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with the provisions of Section 13 of the Industrial Relations Act 1969 and 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.

Background:

The Complainant was in dispute with the Respondent in relation to their handling of her bullying and harassment complaint.

Both parties made detailed submissions, both written and verbal, and in the case of the Complainant submitted detailed documentation in support of their position. Each party was highly critical of the other party in their submissions.   What follows is a very brief summary of the parties’ positions.

Brief Summary of Complainant’s Case:

The Complainant said that she made a formal complaint of bullying in the workplace to her Employer on 5^th August 2015 and that she was represented by her named representative.  

The Complainant provided to the Respondent and subsequently to the Adjudication Hearing detailed descriptions of her complaints.

The Complainant pointed out that she had been informed in writing by the Respondent that she could not be represented or accompanied by any party other than a work colleague, even though her written contract of employment explicitly that she may be accompanied by any third party and may elect to have them present her case.   She said that she believed this was an attempt by the Respondent to deny her right (as contained in her contract of employment) to be accompanied, represented and supported in dealing with her complaint.

Mediation was suggested as an option to deal with the matter and the Complainant provided detailed information in relation to efforts to arrange mediation.   The Complainant also provided information in relation to why the mediation process did not work and her withdrawal from it on 7^th October 2015 and the reason for her withdrawal and her written request for a formal investigation of her bullying and harassment complaint.

The Complainant provided copious email correspondence in relation to her and her Representative’s efforts to have the Respondent arrange for an investigation of her complaints and pointed to the delays that they asserted were caused by the behaviour and actions/inactions of the Respondent.   The Complainant said that due this and the fact that she and her representative were being ignored by the Respondent they referred the matter to the WRC on 17^th November 2015 (the first referral to the WRC).

This first referral to the WRC was the subject of a hearing by the WRC on 9^th March 2016.   That complaint was withdrawn from the WRC to allow the parties arrange and have an internal investigation within an agreed period of time.  

The Complainant referred to what occurred immediately after that hearing on 9^th March 2016, when she claimed that she had been inappropriately approached by the Respondent and that the Respondent engaged in an inappropriate discussion with her which she believed put her in an awkward position and was putting inappropriate pressure on her.

The Complainant said that the in the Investigation conducted by the Respondent they interviewed both her and the person against whom she had made her complaint.

The Complainant said that on 13^th April 2016, she received and unsigned letter from the Respondent stating that had found that it was not a case bullying and harassment and she was informed that she could appeal that decision under the Industrial Relations Act to the WRC.

The Complainant said that her Representative was treated with total disrespect by the Respondent and their Representative and she does not understand why as she had selected her and a Representative.

The Complainant submitted that she was treated very badly by the Respondent in this matter and she made detailed submissions in that respect including a large amount of email correspondence in support of that submission.

The Complainant said she was the sole income earner as her husband has an acquired brain injury and that fact is known to the Respondent.   She said that she alone must pay the mortgage on their home.

The Complainant said that due to her treatment by the Respondent she has been unable to work and has been on sick leave since 5^th August 2015 (almost two years) with all the hardship this entails.   She said that the Respondent is responsible for this grave financial hardship she suffered and continues to suffer.

The Complainant said that she is seeking a recommendation that the Respondent provide her with a safe place of work, free of bullying and harassment, to allow her return to work, which she wishes to do and she was further seeking compensation for loss of earnings suffered by her.

The Complainant sought a favourable recommendation.

Brief Summary of Respondent’s Case:

The Respondent was denying the complaints and case made by the Complainant.

The Respondent refuted the allegations and assertions against them made by the Complainant and they responded to them in great detail.   The Respondent also criticised the manner the matter was dealt with by the Complainant and her Representative.

The Respondent said that by letter of 5^th August 2015, they received a written complaint from the Complainant alleging that she was continuously undermined and belittled and bullied by her Supervisor.   The Respondent said the Complainant provided examples of this alleged bullying. On 17^th August 2015 the Complainant sent a further letter in the matter.

The Respondent referred in detail to the string of emails between the parties

The Respondent said the Complaint’s correspondence arrived during the annual leave period in the organisation and they replied by letter of 18^th August 2015 and the Chairperson invited the Complaint to have a meeting in an effort to resolve the matter.   The Respondent said their key concern and wish was that as far as possible any problem would be resolved between the parties on an informal basis.

The Respondent provided detailed information of their efforts to meet with the Complainant and her Representative.

The Respondent said they proposed external mediation and detailed the arrangements for same.

The Respondent said that by letter of 27^th the Complainant agreed to attempt mediation.  

They said that between that date and 25^th September they were making efforts to agree a date with the proposed Mediator.   The Respondent said that the first mediation meeting was held on 25^th September.

The Complainant said on 6^th and 7^th October 2015 the Complainant’s Representative sent two emails to them enquiring as to what progress had been made since the Meeting on 25^th September.   By email of 7^th October 2015, the Complainant’s Representative on her behalf confirmed her withdrawal from the mediation process. Further emails were exchanged between the parties.   Subsequently by email of 13^th October 2015 it was confirmed that the Complainant would engage with the mediation for a further seven days.

Mediation recommenced on 5^th November 2015.

On 6^th November 2015 the Complainant’s Representative emailed the Mediator seeking a revised offer be made and giving the Respondent until 5.00pm on 9th November 2015 to revert with a substantial increased redundancy offer.

On 7^th December 2015, the Respondent wrote to the Complainant informing them that the complaint made would be ‘investigated’ by a nominated sub-committee of the Board.   The Respondent in this letter stated that they confirm that she may bring either a union representative or work colleague only with her to this Meeting (Investigation) only on 11^th December 2015.

On 9th December 2015 the Complainant’s Representative emailed the Respondent to state the matter was now referred to the WRC and that the Complainant wished the matter be dealt with by the WRC and would not be meeting the board as suggested.   The Respondent asked her to reconsider her position.   Further emails were exchanged between the parties.

The Respondent referred to the hearing of the first case on 9^th March 2016 and at that hearing that complaint was withdrawn on the agreed basis that an investigation would be held by the parties with an agreed number of weeks.

The Complainant was met by the investigators on 16^th March 2016 and the party against whom she made her complaint was met by the investigators on 6^th April 2016.

On 11^th April 2016, the Respondent wrote to the Complaint to inform that her complaint was not upheld as they were “not satisfied that she had been subject to either bullying or harassment by …….”.   This letter further informed her that should she wish to appeal this decision she may do so under the Industrial Relations Act and subsequently the matter was referred to the WRC.

The Respondent said that while they accept that they initially had not replied to the complaint during the first two week period, they are satisfied that since that time they at all time attempted to engage as meaningfully as possible with the Complainant and her Representative.    

The Respondent is satisfied that the matter was investigated in full and unfortunately do not accept that there are any grounds for the complaint that the Complainant has been bullied and/or harassed by the other party.

The Respondent responded in full to the allegations made by the Complainant in relation to an alleged incident at the conclusion of the first WRC Hearing on 9^th March 2016 and they strongly denied in considerable details those allegations.

The Respondent submitted they had dealt properly with the Complainant in these matters and in a manner that fully respected her rights and that accordingly sought a finding and recommendation that the complaint/claim was not well found and that it should be rejected.

Findings 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 wish to confirm that I have considered all of the submissions, both written and verbal made to me by both parties and that I have carefully considered all of them and I have concluded as follows.

It is clear to me based on the submissions made to me and on the exchanges at the hearing and all the written documentation made available to be that the relationship between the parties has irretrievably broken done and is not capable of being restored and that there is a total absence of the minimum level of trust necessary to sustain an employer/employee relationship present in the instant case.

In such circumstances it appears to me that the only way forward and the only realistic option is for the parties to agree a severance package and the redundancy of the Complainant from the employment of the Respondent.  

I note that the Complainant has not been replaced in the almost two years that she has been on sick leave and that accordingly it is entirely possible for her position to be made redundant.  

I further note that I was informed by both parties that the question of redundancy was discussed as part of the attempted mediation although no agreement could be reached on the redundancy / severance package.   Thus it appears that both parties were willing to accept dealing with the matter by way of a redundancy with a redundancy package.

I accept that it would not be reasonable to expect the Complainant to accept a severance / redundancy package based on statutory redundancy as this is not the ‘norm’ in the Community Sector where she is employed.   Enhanced redundancy payments are very much the ‘norm’ in the Community Sector and the following are some examples of this: nb SE = statutory redundancy, CDP = community development project, LDL = Local Development Company, CWC = community Workers Co-Op, CEL = Community Enterprise Limited, CDP = Community Development Project and SP = Sports Complex, LCR = Labour Court Recommendation.

1. CE Supervisor and Assistant Supervisor :   SE + 3.35 weeks pay per year of service

2. LCR157 96: CDP: SE + 3 weeks pay per year of service

3. LCR19755: LDC: SE + 3 weeks pay per year of service

4. LCR19786: CDP: SE + 3 weeks pay per year of service

5. LCR20298: CWC: SE + 3 weeks pay per year of service

6. LCR19319: CEL: SE + 2 weeks pay per year of service

7. LCR20062:   SP: SE + 2 weeks pay per year of service

It appears to me that No. 1 above is closest to the Complainant’s position and circumstances; however any of the above packages would be a reasonable severance / redundancy package for the Complainant in all the circumstances.

However I also accept that the Respondent are entirely dependent for all funding on their named funder and they could not fund any such redundancy / severance package for the Complaint without the full support of that funder in providing the funding to pay such a package to the Complainant.

Based on the foregoing findings I now recommend as follows.

I recommend that the Respondent should approach their Funder with a view to obtaining the necessary funding to make the Complainant redundant and to pay her the same enhanced severance or redundancy payments as that afforded to CE Supervisors and Assistant Supervisors of 3.35 weeks pay per year of service plus statutory redundancy payment (2 weeks pay per year of service plus one bonus week).   I recommend that the Respondent do all in their power and influence in their contact with their Funder to secure the necessary funding to pay this enhanced payment to the Complainant and to allow this agreed package to apply to the Complainant and that for her part the Complainant should co-operate fully with this and that the Complainant accept such payment as an agreed suitable and acceptable severance payment for the termination of her employment.

I so recommend

Dated:   14^th July 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Key Words:   Handling of Bullying and Harassment Complaint.