ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005245

Complaint(s):

Date of Adjudication Hearing: 25/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Ashdown Park Hotel

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 13 Industrial relations Act, 1969 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

The complainant withdrew CA 7298 – 002.

Summary of Complainant’s Case

The complainant stated that her objective in relation to the hearing was to receive confirmation that she was the victim of bullying in the workplace and to be compensated for that.

The complainant began working for the respondent in February, 2015. She was an OTC assistant. She worked full time on an hourly rate of €11.58. It all went well for a few days and then she noticed that the behaviour of the some other staff members began to change. She felt the behaviour was bullying in nature. The complainant was in a premises in the South East.

The complainant took issue with several individuals who worked with her. Some spoke to her in a demeaning way, some excluded her, some made accusations that were simply not true. One on occasion she was accused of taking an unscheduled break when she actually was using the toilet. She also gave evidence that after the toilet accusation the lock on the door was removed, which made her feel vulnerable when using the bathroom.

She also gave evidence about the lunch time routine. The canteen was very small and she was informed that one individual likes to eat her lunch alone in the canteen which meant that she had nowhere to eat her lunch. She was forced to go out to her car to have her lunch. That made her feel, excluded, isolated and belittled.   In general the atmosphere in the South East store was tense and unpleasant. On one occasion she was so upset she had to leave work in the middle of a shift to attend with her general practitioner. That was due to the level of stress she was under as a result of how other staff members treated her.

The complainant moved to the Harbour town premises on the 16^th May, 2016 but things were no better there. The complainant and her partner, who had been together for many years and had a family together, decided to get married. The complainant called the registry office to book a date for the wedding. She got a date in August. They had to apply to the Courts for an exemption in relation to the three month rule. She also requested time off in August so that she could get married. Her request from time off was met with hostility. She was informed that time off in August in that particular store was forbidden as it was deemed a very busy period. The complainant was desperately upset that she was being forced to change the date of her wedding. Eventually, once the matter was referred to head office she was granted the time off. However she felt aggrieved that she had to fight for it.

The complainant took issue with the fact that the respondent did not commence an investigation following her contacting her area manager back when she was working in the South East premises. She stated that she had several meetings with various HR personnel, had spoken to her area manager about the bullying and nothing was done about it. When she did finally lodge a formal written complaint in May, 2016, the respondent was slow to address her concerns and even when they did the investigation was slow and lacking in detail. She felt like they didn’t take her complaint seriously and simply paid lip service to her issues.  

The complainant took issue with the investigation. She felt that it was not a complete and thorough investigation. Several of the individuals who she had named in the complaint were not interviewed. On that basis she felt that the respondent could not haveestablished all of the facts surrounding her complaint and as a result the findings were flawed. She did not lodge an appeal. She felt after the investigate the respondent was basically tell her “we don’t care about you, you are rubbish” .

The complainant confirmed that she did receive a copy of the grievance procedures. She also confirmed that in total she worked 26 weeks in the South East premises and 8 weeks in the Harbour Town premises before she went out on sick leave. She stated that she couldn’t consider returning to work until the respondent acknowledged that she was the victim of bullying in the workplace and was compensated for same.

Summary of Respondent’s Case

The complainant commenced work with the respondent on the 09.02.2015 as an OTC Assistant. Her hourly rate was €11.58 (Average hours = 30 per week = €343.15).

The respondent takes no issue with the Complainant’s performance, or previous mystery shopping report results, which the Complainant referred to in her initial evidence and states that there is a job waiting for the complainant should she wish to , or when she is fit to return.

While employed with the business, the Complainant received a contract of employment along with a Company Handbook, which includes a copy of the Company Dignity at Work Charter, an Anti-Bullying and Harassment Policy, and the Company Grievance & Disciplinary procedure. Same were opened during the hearing. The Anti-Bullying and Harassment Policy clearly outlines how an employee can make a complaint if he/she believes they have been bullied or harassed in any way. This policy notes that an employee can resolve any complaint of bullying or harassment via an informal route or formal route (formal investigation once the complaint received in writing). In support of this Policy, the Company Grievance Procedure is detailed in the Company Handbook, which clearly states that if an employee is not satisfied with how their grievance is resolved, he/she may refer the matter to the HR Department. If no satisfactory solution is reached by the HR Department, the employee may appeal the matter to the Managing Director.

The respondent accepts that the Complainant initially notified her Area Manager, that she was not happy in South East store, by text on the 31st July 2015. The HR department was notified on 12th August. The Complainant was advised of the internal procedures available to her to resolve her perceived issues, and she was offered independent counselling. The Complainant decided not to use any of the Company internal procedures open to her in 2015. Once she changed her mind and requested a formal investigation after a meeting with HR Manager on the 29th April 2016, she then forwarded a written complaint to the Company (2nd May). The Respondent then took the necessary steps to conduct an investigation. However, the Complainant did not agree with the findings of the report and while represented, made the considered decision not to appeal the findings of the report. It is therefore clear that the Complainant did not exhaust the Company internal procedures available to her, and therefore did not act reasonably.

The Complainant notes in the WRC claim form that she was ‘bullied and harassed over a long period of time. The Complainant started with the Respondent in February 2015 and formally notified her Area Manager by text on 31st July 2015 that she wanted to report a case of bullying. Once notified, he followed up with the complainant immediately and outlined the Company internal procedures open to her to address a claim of bullying and support her through such a claim. This information is also clearly outlined in the Employee Handbook, as mentioned above. He also encouraged her to contact HR directly for additional support. On the 12th August, the complainant called HR Manager 2, to notify HR of her complaint. During this call, HR Manager 2 listened to the Complainant and clearly outlined to her the options open to her at that time, namely; 1 Informal; 2 Mediation; 3 Formal Investigation. During the call the complainant indicated that she wanted to start a formal investigation and HR manager 2 advised her that to start such a formal investigation she must forward the details of her complaint in writing including the names of the alleged bully/bullies, the dates and times of any alleged incidents of inappropriate behaviour, along with the names of any colleagues who may have witnessed the alleged inappropriate behaviour.HR Manager 2 also noted that the Company had a confidential counselling service available for all employees if she wanted to avail of this service. In addition, HR Manager 2 noted that the complainant could consider a transfer to another store if she was interested in moving on a temporary or permanent basis. After this call with HR, the complainant text her Area Manager CD on 13th August to request a transfer to another store, as in her own words “I can’t work with negative people”.

Following the initial call on the 12th, HR Manager 2 tried to contact the complainant on a number of occasions over the following days. Contact was finally made on the 18th of August. On this day (18th), HR Manager 2 and the complainant exchanged emails and phone calls. HR Manager 2 sent a follow up email to the complainant on the 18^th August at 16.53 to confirm what was discussed during the day. In this email it is again reiterates the Company offer of confidential counselling and notes that the complainant has indicated by phone that she does not now want a formal investigation. Nevertheless, the complainant is asked to reflect on this decision and to reconsider making a formal complaint, therefore, allowing the Company conduct a formal investigation. HR Manager 2 notes that “as a company we encourage and support our colleagues to use our internal procedures to address any grievance/complaint where possible”. She again clarifies the 3 options open to the complainant at that time, in case she changed her mind as follows:

1. Informal route – Address the issue directly with the colleague concerned
2. Mediation – support meeting held between you and colleague concerned along with a member of the HR team to allow both parties to communicate their views with the aim of finding a mutual resolution
3. Formal Complaint – formal complaint put in writing and investigation carried out based on this.

This email also confirms receipt of the complainant’s transfer requests.

As there was no further contact from the complainant, and no counselling sessions were availed of, HR Manager 2 maintained contact with the Complainant to support her during this time. She e-mailed her on the 1st of September looking for an update in relation to attending the counselling sessions. The complainant noted in her response that she is “still thinking over my options” and notes that it is “Terrible to be accused of been on a tea break while using the toilet ….”. While the complainant had already indicated that she did not wish to make a formal complaint, and did not wish to resolve her perceived grievance via the informal route, mediation or a formal investigation, given the tone of her email, HR Manager 2 emailed her back on September 1st noting “I think it could be a good idea if we meet up to see how we can support you”.

The following day, 2nd September 2015, the complainant arrived to work as normal, however she left early (10.30am) as she claimed she could feel the tension in the premises once she arrived. She left work early and visited her doctor. Later that day she submitted a medical certificate from 2/9/15 up until 16/9/15 due to stress. The complainant and HR Manager 2 spoke by phone on 2nd September and again she was encouraged to take up the offer of confidential counselling and “I would urge you to reconsider using our internal procedures to address any grievance you may have – the details of which were outlined in my emails to you on 18 August 2015” . Again, it is clear that the Complainant was advised and encouraged to use the internal procedures and support measures open to her, however she decided not to use these procedures.

The complainant resigned on the 3rd of September 2015 by email. The Company did not accept this written resignation. Instead a meeting was arranged between the complainant and HR manager 2 to discuss all options open to her at that time. This meeting was arranged for the 14th September 2015 in the Ferrycarrig Hotel.

HR Manager 2 wrote to the complainant, and her representative, after the meeting to outline what was discussed and agreed at the meeting. This letter clearly notes that the complainant and her representative were considering various routes in relation to her grievance such as a “transfer to another premises in …” and “a claim for compensation” in respect of her allegations. However, as Hr Manager 2 correctly outlined in the meeting and in her follow up letter “I am not in a position to comment (regarding compensation) other than to reiterate that as yet, no investigation has been carried out in relation to your grievance.” Therefore we have no definitive outcome or finding in relation to your grievance”. Again the 3 options available to her at that time, were outlined again. The letter states “I note you stated in our meeting that you did not intend availing of our internal procedures in relation to your grievance. Therefore as a Company we are taking appropriate steps to carry out our own internal review”. This letter was sent to both the complainant and her representative and was not disputed. At no stage was there an agreement to share the results of this internal review with the complainant and/or her representative.

The review is referred to internally as ‘Values Research’ and asks all employees working in the premises at that time some general questions. As the Complainant had made no formal complaint in writing at this time, the Company was not in a position to put any allegation to any employees as the Complainant had not clearly set out the details of her grievance or whom her allegation was against.

After meeting with the employees, this Internal Review/ Values Research did note that some employees in the subject premises referred to the atmosphere being ‘tense on occasion’. In response, HR provided additional training for the Manager in the areas of effective leadership, delegating, managing people and handling conflict. In addition, the Area Manager at the time, spent additional time on a one to one basis with the Manager to offer additional coaching and support in an effort to improve the working environment in the premises

At this time, the complainant was on certified sick leave from work. In line with best practice and the Company internal procedures, HR wrote to her to arrange an Occupational Health Assessment with the Company Doctor. The complainant attended this appointment on 21st January 2016. The report noted that the complainant was medically fit to return to work.

It is noted from the correspondence received from the complainant’s representative in February 2016 that the complainant was of the view that an investigation was being conducted into her grievance, even though she had not provided details of her complaint in writing to allow such an investigation to proceed. It appears that there was a misunderstanding between the parties and this was clarified in HR Manager’s letter dated 23rd March 2016. In this letter HR Manager 2 also advises the that there is a transfer position available in the a Harbour town.

HR Manager 2 went on Maternity Leave. Her colleague HR Manager 1 was appointed as the point of contact, and a meeting arranged by letter dated 27th April for the 29th April 2016. Following this meeting, the complainant sent an email to HR Manager 1 outlining her written statement in relation to her grievance. This was the first formal written notice of her grievance. In it she requested a formal investigation. She submitted a statement. Following the meeting dated 29th April, HR Manager 1 sent a follow up letter to the complainant confirming the new position in the harbour town and noted that the complainant was available to start back to work on Monday 9th of May, as advised by her representative. This letter also confirms that the Senior HR Administrator would meet with the complainant as part of the formal investigation the following week. Unfortunately, the complainant was not available to meet at this time until 1st June 2016 due to a number of personal commitments.

The complainant clarified in her email dated 6th May that she was not available to return to work in the Harbour town until Monday 16th of May instead of the 9th of May. In this email, the complainant also requested a number of annual leave days that she required during May, June and August, all of which were granted to her.

The complainant and her husband met with the senior HR administrator the 1st June, and further information was gathered in relation to her grievance. This allowed the formal investigation commence. Full details of her statements are outlined in the investigation report. Following that meeting with the Complainant, the senior HR Administrator forwarded a copy of the complaint to the alleged bully and subsequently met with the employees named in her complaint on the 22nd June 2016. Unfortunately, at this time the other employees mentioned in her grievance had left the business namely Area Manager who left the business on 31st March 2016 shop assistant, who left the business on 13th April 2016 and another shop assistant who left the business on 22nd April 2016 before any complaint was received. Another employee left the business on 31st May 2016 before the complainant as available to meet with HR. The departure of these employees was beyond the control of the Company. I would also note that the complainant’s complaint refers to particular lady as being present on occasion during alleged incidents, however it was not possible to meet with her for interview as she is on leave from the business since 27th November 2015.

It should be noted that at this time, while the complainant returned to work in the harbour town on 16th May, she was placed on sick leave from 2nd July and remained absent, due to a medical condition (Trigeminal Neuralgia) unrelated to the workplace or stress.

It is the Respondents view that a full, fair and reasonable investigation was conducted in a timely fashion. The results of this investigation, along with a copy of the investigation report, were issued to the complainant and her representative by letter dated 16th September. This letter notes “no corroborating evidence was available in a majority of the points raised. This presents a particular difficulty for any direct case of bullying and harassment and/or respect and dignity to be proven”. The letter goes on to say “the allegations are uncorroborated and unsubstantiated and in some cases, counter allegations of inappropriate language and behaviour are made”. The letter notes that by way of a recommendation all colleagues will be retrained in all aspects of dignity and respect in the workplace. This report also clearly outlines that AC has the right to appeal this decision in writing, however no such appeal was every received. A representative from HR meet with the complainant and her representative for Monday 19th September to discuss the report.

No appeal of the investigation report was ever received. The complainant continued to send medical certificates during this time, however, her cert changed to ‘work related stress’ effective 19th of September.

The complainant’s representative sent a letter to the Company noting his intention to lodge a claim with the WRC on the 23rd September. This letter clearly outlines that the complainant’s primary issue, as outlined in the meeting dated 29th April, was compensation and noted that the report made no reference to this central issue. It should be noted that it is simply not appropriate for an investigation report to offer an employee compensation, particularly when the report finds there is no evidence to support the claims raised.

Findings and Conclusions;

The complaint made by the complainant is that the conduct complained of amounts to ‘workplace bullying’ as defined in para. 5 of the Schedule to the Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace)(Declaration) Order 2002 (S.I. No. 17/2002). That Order declares that the Code of Practice set out in its Schedule shall be a Code of Practice for the purposes of the Industrial Relations Act 1990. At para. 5, workplace bullying for the purposes of the Code of Practice is defined as follows:

‘Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once-off incident, is not considered to be bullying.’

It is well established that the respondent owes the complainant a duty of care not to engage in or permit conduct which constitutes workplace bullying. This was also the position before the Supreme Court in Quigley v. Complex Tooling & Moulding Ltd. [2008] IESC 44 , [2009] 1 I.R. 349, Fennelly J. (with whom Denham J. and Geoghegan J. agreed), identified that for the purpose of the above definition of workplace bullying, the conduct must be repeated, inappropriate and undermining the dignity of the employee at work.

In Glynn v. The Minister for Justice , Equality and Law Reform & Ors. [2014] IEHC 133 . In that judgment, Kearns P. at para. 54, having set out the definition of workplace bullying, stated:

‘This wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of common sense also, be an objective one given that any other would leave every defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that straightforward situations at work or otherwise were construed by him/her as amounting to bullying.’

The difficulty in this case is the length of time it took the complainant to lodge a formal grievance. She was encouraged on a number of the occasions by the respondent to do so, but for her own personal reasons, she decided not to. That made a proper investigation into the matter almost impossible. However, their handling of the complainants concerns prior to the lodging of the grievance was thorough and fully complied with their obligations in relation to their duty of care to the complainant. I find that once the complaint was lodged the respondent’s process in relation to it was fair, objective and thorough. The complainant took issue with the fact that no formal investigation was commenced by the respondent until after the 29th April, 2016 despite the fact that she did not initiate a formal grievance. She was given a copy of the grievance procedure on more than one occasion and she was advised by e-mail on several occasions what her options were. Despite that, she made the decision not to formally invoke the grievance procedure. In those circumstances she is estopped from apportioning blame or criticising the respondent handling of the matter prior to her invoking the grievance procedure.

Once the complainant invoked the grievance procedure, the respondent acted promptly in progressing the matter. Through no fault of the respondent many employees named in the grievance were no longer working the respondent and/or were on protected leave. Had the complainant invoked the grievance procedure when she first raised the issue with her area manager, those issues would not have arisen. Those who were named in the complaint and were still employees of the respondent were interviewed. Those statements together with the complainant’s statement were analysed and the decision was outlined in a report which was furnished to the complainant and her representative. The complainant was advised of her right to appeal the findings however she decided not to. Instead she lodged a claim with the WRC.

The complainant does have an obligation to exhaust the internal process before taking the matter to an external source. She failed in her obligation.

In relation to the complainant’s specific complainants of bullying, I find that objectively the alleged behaviour was not directed towards the complainant. There does seem to have been a poor atmosphere within the South East store but that atmosphere was general in nature and did not target the complainant specifically. Furthermore, I find that her issue is relation to the wedding day annual leave was blown out of proportion taking into account that she requested leave in a blackout period and was actually granted the leave within 24hours of the request.

In all of the circumstances I find that the complainant complaint of Bullying is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that

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

I recommend that the complainant should engage with the respondent in relation to their offer to facilitate her return to work. I also recommend that the respondent should make its counselling services available to the complainant prior to her returning to work, should she decide to do so.

Dated:   20/06/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly