ADJ-00013930

Complainant

Respondent

Anonymised Parties

Security Officer

Security Provider

Representatives

SIPTU

Insight HR

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-00018101-001

22/03/2018

The Worker commenced employment with the Employer on 3rd May 2008 as a Security Officer. He works approximately 24 hours a week and is paid €11.35 gross per hour. The Worker referred a dispute related to procedures adopted by the Employer in investigating complaint initiated by the Worker.

The Worker submits that two incidents which were linked occurred in July 2017.

On 11th July 2017 the telephone system from the controller was not working correctly. The Worker submits that he was informed by another Security Officer (SO), Mr A that a complaint was made against him in respect of his dealings with the controller office agent on that day. The Worker submits that he emailed the General Manager Ms H to inform her of the matter. Ms H replied that there had been no complaint made and stating that: “I will also speak to [Mr A] about this as he should have discussed this directly with me”.

The Worker submits that the second incident occurred on 21st July 2017 when there was a confrontation with Mr A. The Worker submits that during the argument Mr A called himnames and struck him on the bridge of his nose with his head. The Worker submits that another SO Mr N witnessed the incident. The Worked submits that on Monday 24th July 2017 he emailed the General Manager, Ms H to formally report the matter. An investigatory meeting was arranged for 4th August by Ms H. The Worker was accompanied by his Trade Union representative. The Worker claims that at the meeting and in the subsequent email correspondence a number of issues were raised by his union representative. The main concerns related to the fact that the witness statements and CCTV footage were not provided to the Worker and to Ms H’s involvement in the previous incident on 11th July 2017. A question was also raised in respect of Mr A incorrect statement that there were no prior issues between him and the Worker that might have led to the incident. The Worker claims that the questions related to this matter were not answered by Ms H.

The Worker submits that on 22nd September 2017 he received an outcome letter from Ms H stating that there was no conclusive evidence to support the complaints that the Worker was physically struck or that there was verbal abuse, nor was there evidence on who instigated the incident and the matter was closed. The Worker submits that there was no right to appeal or progress the matter to the next stage. SIPTU on behalf of the Worker questioned the matter and, as advised submitted the appeal to Ms W, the Director of the Employer. The appeal hearing was held on 14th December 2017. The Worker submits that Ms W was accompanied by Mr X, HR Adviser. The Worker submits that SIPTU objected to Mr X hearing the appeal as he had been advising the Employer’s investigator throughout the process. However, Mr X contended that his advice was minimal and did not accept the objection. The Worker submits that on 5th January 2018 Mr X issued his decision not upholding the complaints.

The Worker submits that the process was seriously flawed. The Worker request that the Adjudication Officer (i) declares that the Worker’s case is well founded, (ii) declares that the investigation procedures were seriously flawed and the report has no standing, (iii) declares that the appeal was seriously flawed by the absence of an impartial appellate and the report has no standing, (iv) awards the Worker appropriate compensation for being deprived of his rights to a fair and impartial procedures and the consequent distress caused.

The Worker cited DHL Express (Ireland) Ltd v A Worker CD/14/350.

The Employer submits that on 24th July 2017 the Worker emailed the General Manager of the Employer Ms H regarding a ‘serious incident’ which he alleged took place on 21st July, involving another Security Officer, Mr A. In his email the Worker alleged that Mr A behaved in an abusive and threatening manner and subjected the Worker to a ‘verbal and physical assault and defamation of my good name, character and reputation’. The Employer submits that on being made aware of a complaint by the Worker, it immediately instigated an investigation process, during which the Worker was fully represented and the Employer examined fairly the allegations made. The Employer submits that without third party verification of the allegations made by the Worker, and in the absence of definitive CCTV evidence, the Employer was not able to uphold the Worker’s allegation as there was ‘no conclusive evidence of a physical strike by [Mr A] inflicted to your [the Worker’s] nose on 21st July 2017’. The Employer argues that the investigation was thorough, fair and reasonable.

The Employer submits that the Worker and his representative appealed the findings on 2nd October 2017. An appeal hearing was heard by Ms W, Director of the Employer on Mr X, HR Consultant on 14th December 2017. The Worker was represented at the appeal hearing. The Employer submits that on 8th January 2018 Mr X wrote to the Worker and his representative to advise that his appeal was unsuccessful. The Employer submits that it has applied fair procedures and the principles ofnatural justice at all times. The Employer submits that it fully complied with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

The Employer cited Pinnacle Security v Mabuza UDD 1640, UD/16/73 and EG v The Society of Actuaries Ireland (June 2017).

In relation to this dispute I find as follows:

The Worker was involved in an incident with another Security Officer, Mr A on 21st July 2017. The Worker made a complaint against Mr A to the General Manager, Ms H on 24th July 2017. I find that Ms H immediately took steps to investigate the Worker’s complaint.

I note that the Employer is a small organisation with limited managerial staff. I note that Ms H dealt with the incident of 11th July 2017, which was reported to her by the Worker. There was no complaint raised in that regard and the Worker’s email required no further action. I do not consider Ms H’s involvement to be a basis for prohibiting her from conducting an investigation into the Worker’s grievance. Even if the Worker’s allegation that “reprimanding” Mr A could have led to the subsequent incident on 21st July 2017 was true, which I do not say it was, it in no way implies Ms H’s bias or predisposition. In relation to the matter of Mr X hearing the appeal, I note that Mr X was copied with some email correspondence between the General Manager and the Worker during the investigation process. Mr X did not take an active role in the process but provided “cursory HR advice” and he held the appeal jointly with the Director of the Employer, Ms W. I find that Mr X’s involvement in both investigation and appeal processes was not ideal. I also find that the delay in providing copies of the interview notes and the CCTV footage to the Worker was at variance with best practice.

However, despite these procedural shortcomings, taking all of the circumstances into account I do not find that the Investigator’s Report and the Appeal Report are without standing or that the process was unsound.

I note that the appeal panel encouraged the Employer to offer mediation and/or counselling to the Worker to provide on-going support to him. I am cognisant of the fact that the Worker is clearly upset by the events and has concerns in respect of Mr A entering and exiting the site that the Worker is employed on. I therefore recommend that the Employer follows the appeal panel’s proposal and arranges mediation for the parties to this incident and counselling to the Worker, if he deems the latter required.

Having considered the submissions of both parties to this dispute I do not recommend in favour of the Worker’s claim as submitted. I recommend that the Employer offers the parties an opportunity to avail of an independent mediation process and provides and meets the cost of counselling to the Worker if required.

Grievance- appeal – flawed procedures