ADJ-00012891

Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Retailer

Representatives

Brian Doran

Rebecca Kiely (The HR Suite)

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-00016874-001

16/01/2018

The Complainant was seeking compensation for stress arising out of incidents at work, an apology, rescinding of a verbal warning and an increase in her hourly pay rate.

The time between complaint being made (10th May 2017) and me being made aware of what the complaint was (22nd Aug 207). This goes against the company grievance procedure which is attached.

1 Witness was interviewed before I was notified that there was an investigation, hence, investigation was started without my knowledge.

8 witnesses interviewed that were not named in the original complaint or in the investigation meeting between the parties to the problem.

This goes against the company grievance procedure.

All witnesses were informed that their name was given the company by the complainant.

This complaint escalated after I told the Manager that I felt he was bullying me and he told me to take action and he would find something to take action also.

I have received 2 different versions of the original complaint, 1 of which has evidence to show that it was written by TD

1 allegation was upheld against me based on the evidence of 1 named witness. However, the evidence of both the complainant and the named witness suggests that the allegation is false and should not have been upheld. I believe an impartial person would have recognised this and thrown out the allegation, when I highlighted it to the outcome manager, he agreed and said it would be taken into consideration and It seems someone else made the decision to uphold this allegation. To note, I was made aware that the other person was successful with her interview for promotion on the 8th May 2017.

At no stage did I authorise the company to disclose my personal information to any external 3rd parties during the course of this investigation.

TD made me aware during a separate issue, that I must exhaust all internal avenues before taking any issue externally however, the company were consulting with the HR Suite throughout this investigation into me.

On 6th June 2017 I asked the Manager to have the HR Suite contact me as I wanted an investigation started into his attitude towards me, on 7th June 2017 the HR Suite contacted me and I gave them a brief synopsis of my complaint over the phone, on the 8th June I received an email from a Senior Manager stating she was carrying out an investigation into me on the back of a complaint from the other employee.

I emailed HR suite on 17th Aug 2017 with my formal complaint against TD, I deliberately delayed this as I was waiting for an email from the Investigation Manager, with an invitation for me to meet with her in relation to the other employees issue with me, I heard back from the HR Suite on 18th Aug 2017 and then received an email with that invitation on 22nd Aug 2017 (the following Tuesday), I feel the timeline here is very peculiar.

1 named witness Ms X was asked a direct question about an incident for which she confirmed she was not on duty, the other named witness Ms Y was not asked and she was on duty on the day in question.

Why did the investigation continue after neither witness could confirm any allegation against me?

Why was no one interviewed after my interview with the Investigation Manager to confirm or deny anything I had said?

After I refused on numerous occasions to meet with outsourced 3rd Parties, the company proceeded to give me a verbal warning via the HR Suite.

The company stated that there were no other internal parties to complete the investigation, however, I never met with relevant people.

This investigation has cost me stress and time away from my family while I deal with and review each and every email and attachment that was sent to me from 8th June 2017 up until 6th January 2018. I went through everything with a fine-tooth comb as I felt from the start this was a witch hunt and retaliation from the company because of me questioning their decision not to give me the promotion and for filing a formal grievance against the Manager.

It seems insane that the company would appoint an investigation manager, appoint a minute taker, hire an outsourced HR firm to advise, invest 8 months of work into this investigation, interview 10 people and appoint 3 external parties to finalise the investigation. I feel this is evidence that the complaint was being by the company and not the complainant. Why would they go through this expense and not ask 1 person who was present during the alleged incident about that incident.

An employee (SM) within the company raised a grievance against the Complainant.

The company followed internal policies as outlined in the company handbook and provided SM with the Company Grievance Procedure.

SM initially chose mediation however when offered and fully explained (by way of a meeting and a very detailed mediation agreement), the Complainant refused stating that there was no issues with their working relationship.

Following the Complainants refusal of mediation, SM chose to proceed with the formal route. In line with company policy, SM was required to write a formal written complaint and requested to have an email dated 27 April 2017 as her formal written complaint.

A letter was issued to the Complainant informing her that SM had decided to take a formal grievance against her and that she would then be furnished with a copy of all the details, including minutes of any investigation meetings with the Complainant and any witnesses in advance of her being invited to a Grievance Investigation Meeting.

SM named 2 witnesses however given the seriousness of the allegation a decision was made to interview all deli staff who worked closely with SM and the Complainant as we wanted to get an overall view of their working relationship rather than just interviewing 2 witnesses named by SM. It is important to note that this decision was also made in the interest of fairness.

A full investigation was carried out in line with the Company’s Grievance Procedure which is in line with the Rules of Natural Justice and the Separation of Process.

Following the investigation, the Grievance Outcome Manager issued his decision recommending that Disciplinary Action be taken against the Complainant. This letter stated that both parties had the opportunity to appeal this decision. The Complainant advised that she wished to appeal his decision and so the Grievance Outcome Manager advised that he would have the Grievance Appeal Manager contact her directly.

The company had exhausted all internal parties who could appropriately act as the Grievance Appeals Manager and for that reason a former store manager was appointed to this role. Given that he had been a former manager within the store, the company were confident that he had the skills to take on this role to ensure the grievance appeal was dealt with in a fair and impartial manner.

The Complainant responded to the Investigator to inform him that she would not be engaging with him as he was no longer a member of staff within the company. The investigator explained that in line with company policy, they were permitted to appoint an external party however he asked that she outline who, if any, internal parties she felt could act appropriately as Appeals Manager and that he would then revert back to the company with this for consideration. The Investigator asked on several occasions that she provide a name for an internal party for this role however she failed to provide any names and so the Investigator confirmed that they had no option but to proceed with him as the Appeal Manager for the Grievance. The Complainant refused to engage with the Investigator and so failed to appeal the decision.

The process proceeded to disciplinary once the window of appeal had passed. The Disciplinary Outcome Manager (DOM) wrote to the Complainant with an invite to the Disciplinary Outcome Meeting. The Complainant responded to state that she would not engage as the DOM was also an external third party. DOM responded and encouraged the Complainant to attend and explained that if the Complainant failed to attend the meeting, she would have no option to proceed with the process without her input.

It is important to note that the company’s Disciplinary Procedure as outlined in the Company handbook outlines that “The company reserves the right to refer the matter to an outside Consultant.” This refers to the overall process including the issuing of sanctions on behalf of the company.

The Complainant failed to attend the Disciplinary Outcome Meeting. The DOM then issued a sanction letter which was verbal warning valid for 12 months. This letter also outlined that the Complainant had the right to Appeal. The Complainant failed to Appeal the Sanction.

The Complainant failed to exhaust all internal procedures as is required in line with company policy.

The Complainant stated that she would not engage with a third party as it was not in line with company policy however it is important to note that the Complainant raised a grievance against TD and this grievance was handled in full by the HR Suite who is an external party. The Complainant did not raise any concerns in relation to the fact that her grievance was being manged by an external party and she cooperated fully in relation to her grievance against TD. At no point in time during her grievance against TD did the Complainant outline that her data protection had been breached. It is also important to note that its states in the company’s Grievance Procedure that a third party can be appointed if deemed appropriate. In this case, all internal parties had been exhausted and so it was necessary and appropriate to appoint third parties to the grievance to ensure fairness.

In the Complainant’s submission she outlined that “It seems insane that the company would appoint an investigation manager, appoint a minute taker, hire an outsourced HR firm to advise, invest 8 months of work into this investigation, interview 10 people and appoint 3 external parties to finalise the investigation. I feel this is evidence that the complaint was being by the company and not the complainant.” The company strongly refute this allegation and SM who raised the grievance is willing to confirm that she submitted this complaint herself. This process has placed an extremely large financial burden on TD and so it is completely illogical to think that TD would place this burden upon himself.

The Complainant queries why TD or Ms. F were not involved in the process. Given the fact that The Complainant had raised concerns about her working relationship (that TD was bullying her) with TD, a decision was made to not have him part of this process. It is important to note that the decision to keep TD out of this process was made in the interest of fairness to the Complainant and to ensure that all parties were impartial.

It was not possible to have Ms F involved in the process as she was out on sick leave in advance of her commencing maternity leave to which company has evidence based on Ms F s sick certs submitted.

The sanction of a verbal warning was issued to the Complainant in line with the company’s Disciplinary Procedure however, as discussed within the Adjudication Hearing, we are willing to revoke this warning from her file in advance of its expiry in January 2019 in the interest of returning to a harmonious working relationship.

The company have an obligation to investigate and manage all Grievance and Disciplinary matters in line with the Rules of Natural Justice and the Separation of Process. The company feel that this process was managed in line with both to the best of our ability to ensure fairness to both parties.

A number of the issues raised by the Complainant in this case were to do with procedure used in an investigation into her behaviour and who did what and when. While there is no documentary evidence submitted that the senior manager was involved in the process when it was started the Complainants version of events is to the contrary. Also the appointment of both an external company accountant (who by their role is more involved with the company than the Complainant) was ill advised from a perceived fairness perspective (while not casting any aspersions on the individual themselves motives). Nor was the appointment of an ex manager to conduct a process also fair as again it could have perceived lack of independence. Not allowing the Complainant the benefit of third party assistance whilst the company had third party assistance also was a process flaw in the investigation. Conducting an investigation months after the original complaint was lodged and interviewing staff before notifying the Complainant of the complainant was also flawed. However, to counter these issues, at times, the Respondent did act with extreme care and attention to conduct a very complete and thorough investigation. Having considered all of the above and the procedural issues involved in the investigation process, I recommend that the verbal warning received by the Complainant be expunged from the Complainants file with immediate effect. As the Complainant has not made a compelling case for an adjustment to her hourly rate as the matters raised in her complaint do not intrinsically involve that matter I see no grounds to make a recommendation to change her hourly rate. I recommend the Complainant be paid a good will gesture of 3, 000 Euros for the perceived failings in the investigation process and to attempt to bring a conclusion to the matter. This amount is put forward in this Recommendation to balance the cases put forward by both sides as both had some merit but none conclusively so. Also as the Complainant, at times, seems to have contributed to her own difficult situation at work she has to bear some responsibility for this detailed and protracted turn of events. The matter of an apology is not really a matter for an Industrial relations forum to adjudicate on and I make no recommendation on that issue.