Complainant

Respondent

Anonymised Parties

A retail worker

A retail chain

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015707-001

10/11/2017

The Complainant started work on 30th June 2014 as a Customer Assistant and is currently employed to work 30 – 35 hours per week earning €12.71 per hour. The Complainant is currently absent on sick leave.

The Complainant utilised the Respondent’s Grievance procedure seeking an investigation into the treatment being received from his line manager. The Complainant felt this treatment constituted bullying and harassment.

The Complainant is also a retained fireman with his local Fire Service and would be on-call at all times.

BACKGROUND:

1.       The Complainant is a loyal, hardworking member of staff employed by the Respondent since June 2014 and he has an unblemished record of employment.

2.       In April 2016, the Complainant informed Management of his application to the Fire Service as an auxiliary firefighter.   Management agreed to support him and issued him with a letter of 13th April 2016 confirming he would be released for emergency situations. On 4th July 2016, the Complainant commenced his service with the Fire Service.

3.       The practice was that when the Complainant’s pager went off he would go to the Customer Service Desk and inform the Staff Member that he would be leaving the store. When he completed his fire service he would immediately return to work in the store.

4.       The arrangement worked well up to the end of February early March 2017 when the Complainant began to notice a change in his Manager’s attitude towards him. His Manager began to make derogatory comments towards the Complainant about his appearance, regarding him attending emergency callouts etc.

5.       The Complainant could not put up with the continued unacceptable comments and behaviour he was being subjected to and formally lodged a grievance, as per the Company’s Grievance Procedure. On 26th June 2017, the Complainant submitted a detailed letter to Management outlining his grievance.

6.       On 7th July 2017, the Complainant attended a grievance meeting with Management. A subsequent meeting took place on 20th July 2017.

7.       On 25th August 2017, the Complainant received the Outcome Report about his grievance from the Regional Personnel Manager.

8.       The Complainant was not happy with the contents of the Company’s Outcome Report and instructed his Trade Union Official to appeal the Grievance Outcome. The Appeal letter was sent to Employee Relations on 31st August 2017.

9.       The Complainant attended his Appeal meeting which was conducted by an appointed Store Manager as Appeals Manager on 28th September 2017.

10.   On 3rd October 2017 the Complainant attended an Appeal Outcome meeting with the Appeals Manager at which the Appeals Manager issued the Complainant his outcome in writing.

11.   Following receipt of the Appeal Outcome, the Complainant contacted his Trade Union Official instructing him to refer his case to the WRC.

UNION POSITION:

1.       The Complainant suffered with his mental health and successfully fought this battle by himself to the point where he took back control of his life. Management were completely aware of the Complainant’s mental health issues. In fact, the Complainant’s Line Manager confirms in his meeting with the Regional Personnel Manager that he “knew about his mental health as he confided in me”.

2.       From day one, the Complainant kept Management updated regarding his mental health and the battle he had to take control of his health. He also informed Management of his intention to become an Auxiliary Firefighter and was delighted when Management confirmed their commitment to release him for emergencies. Unfortunately, this did not continue as the Complainant was subjected to a barrage of inappropriate, unacceptable verbal abuse by his Line Manager, which was witnessed by a number of staff.

3.       It is our strong contention that the Respondent failed in their duty of care towards the Complainant by ignoring the fact that he was bullied and harassed by his Line Manager, to the point that it resulted in the Complainant being medically certified unfit for work due to work related stress from 17th August 2017 to date.

4.       The Company’s Dignity at Work policy defines workplace bullying “as 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 …”.

The Company in its Investigation Report confirms that the Line Manager reacted inappropriately to the Complainant’s callouts and that his comments towards the Complainant were in breach of the Dignity in the Workplace policy. In its conclusion it states, that the behaviour of the Line Manager was inappropriate but goes on to state that “I do not find that this as bullying or harassment”.

It is our strong contention that the Investigation Process conducted by Management was flawed, by the fact, that the Investigation Manager failed to interview the witnesses put forward by the Complainant, whose statements clearly state that the Line Manager spoke to the Complainant on numerous occasions in an unacceptable and inappropriate manner. The blatant disregard by the Investigation Manager not to interview such vital witnesses, is a clear breach of fair procedures and confirms our contention that Management failed in their Duty of Care towards the Complainant and contributed to acerbating his work-related stress.

In fact, Management had the ideal opportunity to rectify the situation during the Appeal Process but blatantly ignored the Complainant’s concerns.   The Appeal Outcome letter confirms that the Investigation Manager “did not carry out any investigation with the four colleagues” which the Complainant put forward as Witnesses. The Appeal Manager admits that he interviewed all four colleagues and confirms they all stated that the Line Manager “did make inappropriate comments to you”. Despite the statements from four witnesses confirming the ongoing inappropriate/unacceptable behaviour by the Line Manager towards the Complainant, the Appeal Manager failed to rectify the situation by upholding the Investigation Outcome, which we contend is another blatant breach of Fair Procedures and further supports our position that Management continued to and systematically failed in their Duty of Care towards the Complainant.

CONCLUSION:

1.       The treatment that the Complainant was subjected to by his Line Manager we argue was clearly bullying and harassment, as outlined in the Company’s definition contained in their Dignity at Work policy and as such should have been recognised in the Investigation Report and the Appeal Outcome. Unfortunately, Management blatantly breached their own procedures, as well as Fair Procedures, by refusing to interview the four witnesses put forward by the Complainant during the Investigation process.

2.       Management further compounded the situation by stating that the Line Manager’s behaviour was not bullying and harassment, when in fact, four witnesses confirmed that his behaviour was ongoing over a period.

3.       Management blatantly failed in their Duty of Care towards the Complainant and contributed to, as well as, acerbating his work-related stress.

4.       Therefore, Chair, we respectfully request that you find in the Complainant’s favour and award him accordingly.

BACKGROUND:

1.       The Complainant started work on 30th June 2014 as a Customer Assistant and is currently employed to work 30 – 35 hours per week earning €12.71 per hour. A copy of the Complainant’s contract clearly references a grievance procedure, a dignity at work procedures and a staff handbook. The Complainant is currently absent on sick leave.

BACKGROUND TO THE DISPUTE:

1.       The core of this dispute is around the Complainant’s membership of the Fire Services and their requirement for him to attend on call out which requires him to leave work. It is worth stating that the Respondent is very supportive of employee’s participation in their local community and have a specific policy to facilitate employees who participate in voluntary emergency service work.

2.       The root cause of the grievance established by the grievance process was that in fact the department in which the Complainant worked was understaffed and his unscheduled departures were difficult to accommodate. The grievance recommended a workload review which has been completed and which the Respondent is confident addresses the fundamental cause of the grievance.

3.       A grievance was lodged by the Complainant about the arrangements for his wages while on call out and what he alleged was bullying and harassment from his Manager when he had to leave work on short notice to attend on call.

4.       The Grievance was conducted according to the Company Grievance Procedure. The original grievance was heard by the Regional Personnel Manager. The Complainant was kept informed of the progress of the process, was allowed his right to be accompanied and was given a right of appeal which he exercised. The Appeal was heard by the Store Manager.

5.       The grievance on arrangement for pay and the opportunity to work back lost hours to recoup lost pay was resolved.

6.       The conclusions of the grievance on the allegations of bullying and harassment was “I find that the behaviour of DL was inappropriate, however, I do not find that this was bullying or harassment. I find that DL had no intention to make you feel that his comments were malicious towards you. I can confirm that a further meeting will take place with DL in relation to his comments and whilst I cannot discuss with you the outcome of this, I can assure you the necessary steps will be taken to ensure that this does not happen again. In relation to your role in the fire service, I want to assure you that the company supports the work you do for the community and are proud to have colleagues in the company that carry out public duties of all kinds.   Recommendation: I recommend that a further meeting takes place with you which the Store Personnel Manager will arrange with the Store Manager to document your ways of working so that everyone is very clear when there is a call out”.

7.       The grievance went further and concluded that there was a clear workload issue in the produce department and that it was undermanned and recommended a review of same.

8.       The outcome of the appeal was that “having considered all the facts of the case and the representations made at the meeting, I conclude that a manger did make inappropriate comments to you on occasions when your beeper went off and you had to leave the store. I find that these comments did not constitute bullying and were said out of frustration and were not meant to be malicious to you. These comments however did breach the Company’s Dignity at Work policy and as per the Regional Personnel Manager’s conclusion in her outcome letter, I can confirm that the Manager has had a follow-on meeting regarding this and he has been re-trained on the Dignity at Work policy on 7th September 2017. My decision is to uphold the Regional Personnel Manager’s outcome from the grievance hearing and that her recommendations for a meeting to be held with management to agree further ways of working to be followed through on your return to work”.

9.       The Complainant has not returned to work.   In welfare meetings with him there have been attempts to engage with the Complainant as to what he feels may assist him in returning to work to no avail.

10.   On 10th May 2018, the Complainant forwarded a resignation letter which was refused by the Store Manager, who stated in a replying letter that he felt that this grievance could still be resolved and that he would like an opportunity to explore the recommendations of the grievance. A meeting has been scheduled for 26th June which is when the Complainant’s representative is available.

RESPONDENT’S POSITION:

1.       The Respondent does consider that their approach to the Complainant’s grievances has been fair and reasonable and in line with their procedures and the conclusion that there was no bullying was reasonable in light of the evidence presented. As the Complainant has been absent, the Respondent has not had an opportunity to implement the recommendations of the grievance and appeal as detailed above.

2.       We are keen to explore with the Complainant his return to work and discuss the recommendations of the grievance and would make the following comments:

-          We will consider any recommendations that the Complainant’s Doctors may wish to put forward to assist in his return to work and will discuss those recommendations with the Complainant if they are available for the meeting later in June.

-          The Complainant has been told about the new EAP service offered by the Respondent.   However, as it is a new service, he may not fully understand what this involves or may have some questions or concerns about making use of the service. The Respondent would welcome the opportunity to explain fully what is covered by the service and to give assurances as to the professionalism and confidentiality standards of the Respondent providing these services. The Respondent feels that the EAP can offer an impartial and independent source of support for the Complainant in the return to work process. As part of the service, the employee is entitled to one to one counselling sessions with a qualified counsellor.

-          Subject to any medical advice and after the Complainant has consulted with the EAP if he wishes to, we will continue to engage on a one to one basis to:

- Discuss the recommendations of the appeal including making sure that the arrangements to all the Complainant to continue his valuable work with the fire service can continue smoothly and how in practice that will work in store when he gets a call.

- Talk through any concerns he has about returning to work.

- Start to discuss how the Complainant comes back to work considering any recommendations of his Doctor (staged basis or at his full hours, what role etc).

- Be briefed on any changes in the workplace.

- Arrange any required training and repeat any relevant training as regards the employee handbook etc.

- Set a return to work date.

- If further meetings are required, they can then be scheduled.

3.       The workload review recommended in the grievance outcome has been undertaken and the Respondent is confident that the workload challenges posed by the Complainant’s callouts would be addressed.

4.       The Complainant must accept that he cannot dictate the outcomes of a grievance and certainly not to the extent of demanding the transfer of an employee. He also must accept that he cannot be privy to the detail of how the subject of the complaint was processed as a result of a complaint and the company cannot go any further in describing the interactions with the manager.   The Respondent can however reiterate the manager concerned has been retrained and is fully aware of the impact his past frustration with staffing levels has had on staff. The workload review has assisted greatly in addressing workload issues. The Respondent is confident that the resolution suggested in the appeal is the correct approach and commit to engaging fully in the process outlined above.  

To start with I want to look at the definition of Bullying and Harassment – The Health and Safety Authority have issued a Code of Practice “ Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work” in this publication Bullying at work has been defined as ‘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’.

By letter dated 25th August 2017 the Regional Personnel Manager who had conducted the investigation quite clearly states “Based on the investigation carried out, I find that Mr DL did react inappropriately to your call outs however they were not malicious and I find his reactions were out of his frustration with his workload on the department”. Later in the same letter the writer states that “I find the behaviour of Mr DL was inappropriate, however I do not find that this was bullying or harassment. I find that Mr DL had no intention to make you feel that his comments were malicious towards you”.

It is no surprise to me that these findings were appealed in line with company policy and procedure. The investigation outcome letter written by the Regional Personnel Manager focusses on the intent of what may have been said and done and remains totally silent on the impact of what may have been said and done. I can accept that Mr DL may have been experiencing problems in managing his department in relation to workload and manning levels, these are management problems and he should not have been venting his frustrations on the Complainant.

This investigation/grievance outcome report was appealed in line with company policy and procedure, the appeal was heard on 28th September by a store manager from another store. In his conclusion he states the following:

“having considered all the facts of the case and the representations made at the meeting, I conclude that a manger did make inappropriate comments to you on occasions when your beeper went off and you had to leave the store. I find that these comments did not constitute bullying and were said out of frustration and were not meant to be malicious to you. These comments however did breach the Company’s Dignity at Work policy and as per the Regional Personnel Manager’s conclusion in her outcome letter, I can confirm that the Manager has had a follow-on meeting regarding this and he has been re-trained on the Dignity at Work policy on 7th September 2017. My decision is to uphold the Regional Personnel Manager’s outcome from the grievance hearing and that her recommendations for a meeting to be held with management to agree further ways of working to be followed through on your return to work”.

Having considered everything said at the hearing and the content of the written submissions I believe the Complainant was the victim of bullying at the hands of Mr. DL.

I note that the Respondent is keen to explore a return to work with the Complainant and made the following comments at hearing:

-          We will consider any recommendations that the Complainant’s Doctors may wish to put forward to assist in his return to work and will discuss those recommendations with the Complainant if they are available for the meeting later in June.

-          The Complainant has been told about the new EAP service offered by the Respondent.   However, as it is a new service, he may not fully understand what this involves or may have some questions or concerns about making use of the service. The Respondent would welcome the opportunity to explain fully what is covered by the service and to give assurances as to the professionalism and confidentiality standards of the Respondent providing these services.   The Respondent feels that the EAP can offer an impartial and independent source of support for the Complainant in the return to work process. As part of the service, the employee is entitled to one to one counselling sessions with a qualified counsellor.

-          Subject to any medical advice and after the Complainant has consulted with the EAP if he wishes to, we will continue to engage on a one to one basis to:

- Discuss the recommendations of the appeal including making sure that the arrangements to all the Complainant to continue his valuable work with the fire service can continue smoothly and how in practice that will work in store when he gets a call.

- Talk through any concerns he has about returning to work.

- Start to discuss how the Complainant comes back to work considering any          recommendations of his Doctor (staged basis or at his full hours, what role etc).

- Be briefed on any changes in the workplace.

- Arrange any required training and repeat any relevant training as regards the

employee handbook etc.

- Set a return to work date.

- If further meetings are required, they can then be scheduled.

The workload review recommended in the grievance outcome has been undertaken and the Respondent is confident that the workload challenges posed by the Complainant’s callouts would be addressed.

I would strongly urge the Complainant to accept this offer and work with management to achieve a positive return to work.

In relation to the complaint of bullying and harassment I believe the complaint is well found and recommend the payment of compensation to the Complainant of €3,000 in full and final settlement of this complaint.

The complaint of bullying is well found – please see above.

Bullying and Harassment.