ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005571

Dispute for Resolution:

Date of Adjudication Hearing: 18/01/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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 complainant had made a complaint under the Company's grievance policy that a work colleague used a term relating to his race which he found offensive. The incident happened in a staff canteen on September 16^th 2015.

The complainant approached the individual who made the remark and asked him for his name and an explanation. He declined to give his name and stated that the reference to the complainant’s skin colour arose in the context of a discussion about getting a suntan on holiday. He also mockingly gave a false name which carried overtones of racism.

The complainant then approached a number of members of management and identified the alleged perpetrator to one of them. That supervisor approached the person identified and established his identity and a denial of any wrongdoing.

On September 22^nd he made a written complaint and a Racist Incident Report Form alleging that ‘another driver made racist remarks in front of other work colleagues’. The form included a statement that ‘No witnesses will come forward’.

A manager above the level of those previously referred to was appointed on September 23^rd to investigate and interviewed the respondent in the complaint on September 29^th. The complainant says it is relevant that the then respondent stated that there were witnesses and that these were not identified and interviewed

There then was a delay of some four months before anything further happened and only did so when the complainant raised the matter again and was promised a response within two weeks.

That did not materialise and on making a second approach he was promised a response again within two weeks. At this point he raised the matter with his union which then took the matter up.

As there was an issue about the status of the original complaint the complainant submitted another on March 30^th 2016 and the respondent (in this case) revived the investigation and a different manager interviewed the party who was the subject of the complaint.

Eventually, on March 16^th 2016 the complainant was told that no witness statements were available and that it was not possible to corroborate the complaint nothing further could be done.

There was an appeal but it did not succeed for similar reasons.

Respondent’s Submission and Presentation:

The narrative set out above in the complainant’s submission is not disputed.

It says that the delay in processing the matter was attributable to the absence on sick leave of a particular manager. As soon as she returned the matter was picked up again and processed.

Findings and Conclusions

The respondent made his initial complaint on September 16^th and 22^nd and it was well known to the company at around that time.

His complaint is that the respondent failed to comply with its own procedures and in the process denied him a fair process.

If delay is a relevant factor in assessing this complaint then one need not go much further than the following.

He got the first decision on his complaint on March 14^th just under seven months later. The process finally reached its journey’s end on June 23^rd, another three months later, making it ten month’s in total.

While the company has explained that a relevant manager was on sick leave this does not excuse the delay. It is a large company with considerable management resources and the allegation was not of a particularly complex or technical nature; it was a simple allegation that a race related phrase had been used which had caused offence to the complainant.

Delay, of course is a factor and justice delayed will be justice, if not denied then significantly diluted. The company’s procedures contain quite strict guidelines on timing; one part of its processes (Stage three) promises a meeting within five days of a request and a decision within four days of that. I am not concerned about what stage the precise application of this falls in the current case and I refer to it mainly as an indication of the standard the company sets for itself in general.

The absence of witnesses was undoubtedly a difficulty but not relevant to the delay. The complainant made much of the failure to interview witnesses claimed by the alleged perpetrator although it is hard to see how they would have assisted him. Nonetheless little enough was done to locate them.

It is open to question whether the words allegedly used constituted ‘racial abuse’; indeed the complainant could not explain to the hearing what exactly they meant, and I could not be clear what they meant.

But they were of a racial nature and the complainant took objection to them and they were, on the face of it, if not abusive then inappropriate.

The complainant sought a finding in favour of the complainant and I so find in that the investigation was inadequate and excessively long. I see no point in recommending a fresh investigation at this distance from the events; even the speediest of new investigations is unlikely to reach a different conclusion to that eventually reached by the respondent in this case.

Of more significance are the lessons to be learned from this for the future. The company has a highly developed and experienced HR resource and it must take steps to ensure that obstacles to the expeditious processing of grievances especially of this nature are identified and removed.

Recommendation

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold the complaint that the company did not conduct a process in keeping with the requirements of its own procedures and best practice.

I recommend that within six weeks of the date of this recommendation it advise the complainant and his trade union of steps it has put in place to identify and avoid a repetition of such delay in the future, especially in the absence of a decision maker or internal investigator for whatever reason.

I recommend the respondent pay the complainant €750 by way of compensation for the breach of his rights as a result of its failure to bring the process to a speedy conclusion .

Dated:   16^th March 2017