ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00014127

Parties:

Complaint(s):

Date of Adjudication Hearing: 23/10/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 27 of the Organisation of Working Time Act, 1997; Section 7 of the Terms of Employment (Information) Act, 1994; Section 13 of the Industrial Relations Acts 1969 andSection 11 of the Minimum Notice & Terms of Employment Act, 1973following 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:

1:        Summary of Complainant’s Case:

2:        Summary of Respondent’s Case:

3:        Findings and Conclusions:

3:1

3:2       Detailed consideration of CA-00018607-004 - the Bullying and Harassment claim under the Industrial Relations Act, 1969.

The Formal Complaint of Bullying was lodged with the Respondent in or about the 26th April 2017. In keeping with Company procedures, a full investigation took place with an initial meeting being held on the 3rd May 2017 with subsequent meetings with witnesses on the 9th May.

The Formal Respondent Response to the formal Complaint did not issue until the 12th October 2017.

The explanation given for this delay was the reported firm belief of the Manager, Mr. XC, that the very act of a comprehensive investigation and his talking to all involved had to a large extent satisfactorily “calmed the waters” between the parties involved. A formal Investigation Report and Conclusion would not have served, in the view of the Respondent’s Representatives at the Hearing, to assist matters in what in the end of the day was a dispute among a group of Cleaners, of identical grade and status, regrading work performances and obvious interpersonal differences. It was interesting to also note that in a follow up after the resignation the Complainant was offered a move to another site so as to avoid daily contact with the other staff member

It is important to note that in the witness interview notes provided in evidence there were no concrete statements of support regarding the Bullying allegations.

However procedurally there were some of issues of concern to me with the investigation. Obviously the first issue was the long delay in producing the findings and the fact that it appeared to take a registered Letter from the Complainant, dated the 25th September 2017, to prompt a Respondent response.

Secondly It did not appear that the Complainant had ever been given an opportunity to formally challenge the witness statements from the 9th May.

However, the Investigation outcome report of the 12th October did, while stating that not enough factual evidence to uphold the bullying complaint had been found, note witness evidence of a “Strained relationship over the past number of years” between the Complainant and the alleged transgressor. Interpersonal differences between individual staff members of the same grade and status does not constitute bullying unless supported by very strong witness evidence. This was not the case here. Mediation, of it appeared an interpersonal nature, between the two parties, was recommended by the Investigator.

Of considerable procedural importance was the fact that the Respondent did offer the Complainant an opportunity to appeal the Finding. This was not availed of by the Complainant.

I would comment that while the bullying Investigation had flaws it had taken place promptly after the Complaint had been received and four witnesses were interviewed. The view of the investigator that, so the speak, the “Medium is the message” and the actual carrying out of a detailed investigation served to calm things down. The view from an Operating Manager that no further action of an official nature was required or would help matters was a judgement call from a Manger involved on the ground who had made a detailed investigation. it cannot be lightly set aside.

In overall conclusion I came to the view that the Investigation achieved the pass mark and was adequate but not of an honours standard due to the delays in issuing the final report.

Accordingly, under the Industrial Relations Act, 1969 I recommend that all future Investigations of this nature should have formal reports issued speedily and that an alternative Investigator decision, to let matters rest, be fully discussed with the Complainant at an equally early time.

In this light I also recommend that the sum of €250 be paid to the Complainant as redress for the delays in the issuing of the Investigation report.

4:        Decision & Recommendation:

Section 41 of the Workplace Relations Act 2015; Section 27 of the Organisation of Working Time Act, 1997; Section 7 of the Terms of Employment (Information) Act, 1994; Section 13 of the Industrial Relations Acts 1969 andSection 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision/recommendation in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Dated:   28.12.18

Workplace Relations Commission Adjudication Officer: Michael McEntee

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