FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No:ADJ-00006334.
BACKGROUND:
2. This case concerns a claim by the Worker that his employer failed to properly investigate and address his complaints of bullying and harassment.
The matter was referred to an Adjudication Officer for Investigation and Recommendation. On 24 April 2017 the Adjudication Officer issued the following Recommendation:-
- I recommend that the Complainant now accepts the outcome of this process.
I recommend that he accepts that his grievances have not been upheld.
I recommend that he now accepts that this should be the end of the matter.
I recommend that he now concentrates on the future and stops dwelling on the past.
I recommend that he accepts the transfer as the best option to him, giving him a fresh start.
I recommend that he embraces the new opportunity and gets on with the rest of his life.
The Worker appealed the Adjudication Officer's Recommendation to the Labour Court on 3 May 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 15 June 2017. The following is the Decision of the Court:-
DECISION:
This is an appeal under the Industrial Relations Act, 1969 by an employee against the Recommendation of an Adjudication Officer Adj-00006334, CA-00008664, concerning a claim of bullying against his employer. The Adjudication Officer made detailed findings and did not uphold the Claimant’s grievances. He recommended, in summary, that the Claimant accept the outcome of the employer’s internal investigations which found no basis for his complaints.
The Claimant alleged that he was being bullied and harassed by a line manager and two other colleagues and that this behaviour commenced during 2014. An email to that effect was sent on the Claimant’s behalf by his local Union representative to management dated 27th August 2014. The Claimant’s shop steward made attempts to resolve matters informally but this was unsuccessful and the Claimant decided not to pursue matters any further at that time.
In February 2016, the Claimant made the HR Department aware of his bullying complaint. He finalised an extensive list of 16 work related grievances for formal investigation in April 2016 relating to his supervisor and two colleagues. His claims were investigated at local level and the findings were shared with him on 11th May 2016. When he did not accept the findings, the matter was escalated to intermediate level at the next organisational level i.e. higher management level outside his immediate work area. The outcome of this investigation was shared with him at meeting on 6 October 2016 and confirmed in writing on 10th October 2016. When the Claimant did not agree with the findings, he escalated his grievance further to Central level, i.e. Company HQ by a HR Manager. The Central Operations Manager carried out an internal investigation, which was completed in November 2016 and shared with him on 10th November 2016. This investigation did not uphold his grievance. Again, the Claimant did not accept this outcome.
He referred his complaint under the Act to the Workplace Relations Commission on 8th December 2016.
The Claimant’s complaints relate to the following four grounds:-
- 1.He objected to the witnesses called upon to give evidence as part of the investigation, he claimed that they were selected by the investigator and imposed upon him, he stated that the witnesses selected by the investigator were personal friends of the three accused colleagues and were accordingly not objective;
2.He was not advised of his right to Union representation to be present when he was asked to attend a meeting to be given details of the outcome of the investigation;
3.He was not advised of the internal appeals process, despite requesting this information on two occasions;
4.Refusal to include the email from his Union representative dated 27 August 2014 (referred to above) in the investigation.
At the completion of the grievance process in accordance with the Company’s procedures, it continued to engage with him and provided him with assistance in returning to work on a phased basis, this included access to the Company’s Occupational Health Services; the support of the Company’s sick pay scheme and proposed alternative work locations.
In response to the issues raised before the Court, the Company stated as follows:-
- 1.The witnesses interviewed were agreed with the Claimant;
2.The Claimant was advised of his right to be accompanied to meetings and /or to avail of the assistance of a trade union in representing any complaint he may have and indeed was represented by a trade union official at several meetings;
3.The Claimant was given details of the appeals process and indeed he progressed his grievance through all stages;
4.The email referred to did not identify a specific complaint and the list of complaints he referred to be investigated in 2016 did not contain a reference to alleged 2014 grievances. The 16 specific grievances related to incidents which occurred during 2015 and 2016. He confirmed for the investigation that this was his full and final list of grievances.
Findings:
The Court sets out below its findings in relation to each of the four grounds of complaint set out by the Complainant.
In dealing with this case, the Court adopts the approach that it has consistently taken in such cases, which is to review the process carried out by the employer to determine whether or not it was conducted in accordance with acceptable standards. In line with previous similar recommendations, the Court’s view is that it is not its role to place itself in the shoes of the employer in adjudicating on the substance or merits of bullying allegations. That is entirely a matter for the employer investigating the matter.
Complaint No. 1
The Court is satisfied that the Claimant had a full opportunity to input in to the question of what witnesses would be interviewed in the investigation. He sought that the shop steward who had sent the email to management in August 2014 be interviewed. However, as all 16 grievances related to the period 2015-2016 it was deemed that matters in 2014 were out of scope in accordance with its procedures and the shop steward was not interviewed. The Claimant accepted that position at that time and proceeded with the investigation on that basis. The Court is satisfied that the question of close personal relationships between witnesses and the accused colleagues was entirely a matter for the investigator to take in to account in weighing up the evidence and is therefore not a matter for the Court to interfere with. Overall on this compliant, the Court is satisfied that the witness list was an agreed/accepted list and does not find any basis to uphold this particular complaint.
Complaint No. 2
The Claimant agreed that he was aware of the existence of the employer’s comprehensive grievance procedures and knew where he could access them in written form. The procedures are collectively agreed with recognised trade unions and expressly provide that employees may avail of trade union representation in processing any grievance. At the core of this complaint are two emails inviting him to two meetings which did not expressly state that the Claimant could have trade union representation at the meetings. The Claimant also appeared to be of the view that the company procedures provide that an employee ‘must’ have trade union representation at such meetings. The Court is satisfied that this was a mistaken view on the Claimant’s behalf and that trade union representation is clearly a matter of choice rather than a mandatory requirement. The Court is further satisfied that, in circumstances where: the Claimant had engaged with his trade union official in early 2016 at the outset of the investigation; the Claimant agreed that the majority of the voluminous correspondence from the employer, both before and after the two email cited, did expressly allude to trade union representation at meetings; the Claimant was represented by a trade union official at several meetings; the Claimant was not disadvantaged in any way by the omission in the two emails cited, there is no basis for upholding this particular complaint.
Complaint No. 3
The Court is satisfied that the appeals process is clearly set out in the employer’s procedures. The Claimant was aware that he could appeal the outcome of the investigation, which he did to the fullest extent of the grievance procedures. The Claimant was not disadvantaged in any way in this regard and the Court can find no basis whatsoever upon which it could uphold this particular complaint.
Complaint No. 4
As alluded to in Complaint No 1 above, the email to management in August 2014 preceded the period of 2015-2016 relating to the 16 grievances within the scope of the investigation. Matters in 2014 were out of scope and the Claimant accepted that position at that time and proceeded with the investigation on that basis. The Court, accordingly, finds no basis whatsoever for upholding this particular complaint.
Recommendation:
The Court notes that the Claimant, following his period of absence, is now back at work and he has been relocated to a new work area, working with new colleagues. The Claimant told the Court that he is very happy working in the new area and the Court is satisfied that such relocation has substantially resolved matters. The Court recommends that the Claimant treat this as an opportunity to proceed with his career on a fresh basis.
While the Court has not upheld the Claimant’s grievances, the Court is fully satisfied that the Claimant at all times acted in good faith in raising issues of concern to him. He acted appropriately in following the procedures available to him, as he was fully entitled to do, and the Court is satisfied that the Claimant was genuine in his belief in his views of his interactions with the particular colleagues in his former work area.
The Court recommends that the Clamant should now accept that his grievances have not been upheld following a very comprehensive and detailed investigation by his employer. In tandem with his relocation to the new work area he should accept that 2015-2016 matters are now at an end and he should move on with his career in the new work area.
The Court accordingly affirms the Adjudication Officer’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17 July 2017.______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.