ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005489

Complaint(s):

Date of Adjudication Hearing: 24/01/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Location of Hearing: Galway Maldron Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant has been employed by the respondent since 28^th of October 2000. The dispute concerns the outcome of an investigation of alleged bulling against the complainant which resulted ultimately in the imposition of a disciplinary sanction (first written warning).

The parties made written and oral submission to the hearing.

Summary of Complainant’s Case:

The complainant submits that the allegation of bullying made against him was not upheld although the findings of the investigation report were referred to a disciplinary hearing on the basis that he was alleged to have made false allegations throughout the course of the investigation process. These allegations were not formally made but were rather by way of general commentary in respect of the behaviours of the person who had made the complaint. In the particular the investigator requested that he be given access to the complainant’s herein diary during the course of the investigation into his behaviours. The respondent subsequently relied upon these diary entries to find him guilty of giving false and misleading information in an attempt to substantiate his claim or damage the person who had complained against him. It was procedurally flawed to discipline the complainant in the circumstances described and it was incumbent on the respondent to conduct a separate process if it deemed that the general assertions being made by the complainant herein were of concern. In any event he should have been advised of the fact that if he were to rely on such statements that he would have to formalise them. No such advice was proffered.                                                                   The respondent removed the complainant from his position in the stockroom temporarily as the relationship between him and the person who complained against him had broken down. As a result the complainant has suffered significant stress and upset. He petitions that the disciplinary sanction be rescinded and that compensation as is just and equitable be paid.

Summary of Respondent’s Case:

The complainant submits that it has a robust and fair problem solving policy in place. The complainant was afforded his full rights in this case. It took a reasonable approach at all stages. An investigator was appointed on foot of a complaint made against the complainant and in the course of the investigation the investigator felt that the complainant had made false allegations against the accuser in the particular case and made a recommendation that he should be disciplined (However, also included in the report was {the investigator’s} belief that the claimant had made false declarations in his meetings in an attempt to damage the reputation of another employee and it was for this reason that {the investigator} referred the claimant for a disciplinary hearing). The disciplinary process (disciplinary meeting was convened) was invoked as a result of which the complainant was disciplined in accordance with the policy outlined above.

Findings and Conclusions:

Before commenting on the specific I wish to acknowledge that the subject matter herein (interpersonal workplace conflict) constitutes one of the greatest challenges for business. The training and skills required to properly manage these taxing and complex cases is at a premium. The cost of these cases is considerable financially and emotionally and they normally affect the wider community in the workplace. I acknowledge that the respondent herein has a robust policy however policy alone does not guarantee best outcomes. It is obvious that this particular conflict will have been hugely costly to the respondent as well as the protagonists. It is clearly that the respondent has contributed significant resources (it would be at least interesting to quantify the same) in the attempt to bring about a resolution. Despite the same there has been no final resolution to date.      I note that there has been previous attempt to mediate between the parties to the interpersonal complaints here and by way of assistance I would proffer the view that the generally accepted failure of the mediation arises in my view from the fact that the respondent itself (who after all has a primary interest) was not demonstrably party to the mediation ensuring that that interest was part of any agreement.

That said it is clear to me that the process leading to the disciplinary sanction in this case was flawed. It is not the role of an investigator (which is in all cases narrow and confined) to invoke the disciplinary procedure as in this case against any participant in the investigatory process. They may recommend that the disciplinary process be invoked as a result of the actual matters directly under investigation or that a further process be invoked as a result of matters arising from the investigation which are not central but are of concern. In the latter case the investigator will/may be a key witness/contributor in that process.

Decision:

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

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

I recommend that the process leading to the application of discipline in this case was flawed and that the sanction applied should therefore be removed and expunged.

Dated:   12^th June 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes