ADJUDICATION OFFICER RECOMMENDATION

 Adjudication Reference: ADJ-00008385

 Anonymised PartiesClerk of WorksLocal Authority   Representatives David Lane SIPTU Trish Foley, Personnel Officer

Complaint(s):

ActComplaint/Dispute Reference No.  CA-00011006-001

Date of Receipt     27/04/2017      

 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00011006-001  

 Date of Adjudication Hearing: 31/10/2017 Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969] 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.  

Background:

The complainant has been employed as a Clerk of Works by the respondent since 2005. Because of incidents which commenced in 2014, the complainant made a complaint of bullying against his line manager and the respondent instituted an investigation which took place in early 2017. This investigation did not uphold any of the complaints made by the complainant. The complainant was unhappy with the manner in which the investigation took place and with its outcome and lodged an appeal in this regard.   The appeal process was conducted by the CEO of the respondent who rejected the complainant’s grounds of appeal.

Summary of Complainant’s Case:

The complainant had worked for nearly 10 years as a Clerk of Works carrying out most of his duties on site across the geographical spread of the local authority. This constituted the custom and practice of his working environment. The complainant was informed by his line manager in 2015 that he was required to work from the respondent’s Head Office and to clock in and out each day. The complainant protested that he had always worked on site and that having to travel to and from H.O. each day meant less time for the complainant being on site and could equate to the loss of 1 day per week in this regard. The line manager began to query the amount of work performed by the crews on site and spoke disrespectfully to the complainant. The manager also raised issues regarding the complainant’s flexi-time insinuating that he was claiming for extra hours. The complainant began to suffer health issues related to stress. During one period of absence the complainant was contacted 3 times by the manager regarding an item of equipment. Other issues arose regarding Irish Water and finally the complainant made a formal complaint to the respondent in relation to these matters. An external investigator was appointed but never interviewed the crew on site as to the complainant’s working environment. When the report was issued it did not uphold any of the issues raised by the complainant. The findings were appealed to the respondent’s CEO but there was no actual appeal hearing. The complainant received a letter stating that the findings of the report were upheld. The complainant did not receive the dignity and respect due to him in his working environment.   Bullying, whether it is subtle or hard, cannot be tolerated. The investigation was flawed as was the appeal process. The complainant should be compensated for stress suffered and should be allowed to continue working on site.    

Summary of Respondent’s Case:

The complainant was referred to the respondent’s Doctor in March 2016 because of concerns about his health. The medical report was copied to the complainant and he was asked to identify any work-related stressors or triggers. The complainant did not respond. In November 2016, following further absences through illness (certified as “work-related stress”) the respondent again wrote to the complainant seeking information on the alleged stressors. The complainant’s union replied stating that a formal complaint of bullying and harassment would follow. Following further correspondence the complainant confirmed his wish for a formal investigation. An external investigator was appointed and on 27 February 2017 the final report was given to the complainant. The respondent accepted the findings of the report but the complainant appealed them to the CEO. The CEO reviewed the matter and decided not to uphold the appeal. The complaint was examined in an unbiased and impartial manner and in accordance with the respondent’s Dignity at Work Policy. The investigator dealt with all complaints raised by the complainant but none were upheld. The respondent rejects the complaint.

Findings and Conclusions: The complainant commenced employment with the respondent in August 2005 and is a permanent full-time employee. The complainant did not have an excessive history of illness but was absent on sick leave on several occasions in 2016.   The respondent referred the complainant to their doctor and his report mentioned a cardiac related history which was being treated by medication and that the complainant complained about being under stress. The complainant had sought reassignment and the respondent requested details of the work-related stressors in order to address the issue. In December 2016, during a further absence through illness, the complainant’s union advised that the complainant would be lodging a formal complaint of bullying and harassment and this was done by way of a detailed letter which named the complainant’s line manager as the perpetrator. The complainant subsequently requested that the complaints be the subject of a formal investigation. The complainant, for his part, felt that the problems began in September 2014 when the complainant was informed by the line manager that he would in future be required to clock in at the respondent’s Head Office and then travel to the site. This exercise would have to be repeated in reverse in the evening when clocking out. The respondent felt that this was a waste of time in many cases given the location of his home. This requirement lasted for 3 weeks when alternative locations for clocking in were introduced.   No formal grievance was raised by the complainant at that time. There was also an issue regarding the use of a van belonging to the respondent but this matter was resolved after the complainant sought the assistance of his union. The respondent appointed an experienced person who was not an employee of the respondent to investigate the complaints.   The terms of reference were forwarded to the parties and the investigation process was commenced on 1 February 2017. The investigator interviewed the two principal parties and also spoke with the respondent’s HR Manager. The report was completed on 24 February 2017. The report identified 11 incidents which were the subject of the complaints. All 11 incidents were examined but the investigator did not find in favour of the complainant in any of the incidents. The decision of the investigator was summed up as follows: I found no inappropriate behaviour of any kind on the part of (the line manager) in relation to the incidents complained of by (the complainant) and (the complainant’s) right to dignity at work was not undermined in any way by (the line manager).I therefore do not uphold the complaint made by (the complainant). The complainant appealed these findings to the respondent’s Chief Executive “based on the fact that the 11 issues identified by the investigator were not addressed.” The Chief Executive responded some 4 weeks later stating that he was satisfied that each of the 11 issues had been addressed and that the appeal therefore was not upheld. There is no doubt that the complainant was unhappy with the outcome of the investigation. It was, however, carried out in accordance with the Dignity at Work Policy, was comprehensive and was completed in a timely manner.   The complainant at the hearing stated that it was defective insofar as members of the direct labour crew were not interviewed in relation to the interaction on site between the complainant and the line manager. I note that only one incident related directly to the direct labour crew and cannot accept that not interviewing those personnel seriously affected the overall report. Another issue that led to a complaint was that the line manager, in querying corrections made by the complainant to the flexi-time system, insinuated dishonesty on the part of the complainant. In fact, the queries in this regard initiated in the respondent’s HR Dept. which had questioned the fact that these alterations were sanctioned by the line manager. In hindsight, it might have been clearer if the HR Dept. had taken up the issue directly with the complainant. The other issue raised at the hearing was the manner in which the appeal was conducted. The Dignity at Work Policy simply states: If either party is unhappy with the outcome of the investigation, it may be appealed, in writing, to (the CEO), within ten working days. There is no process set out and no guidelines as to how an appeal will be handled. I can therefore understand that the complainant was dissatisfied to receive a letter from the Chief Executive stating that he had reviewed the report and did not uphold the appeal. In doing so the Chief Executive seems to have only addressed the very narrow ground set out in the letter advising of the appeal. At the very least the policy should set out either that the appeal letter should contain, in detail, all grounds for the appeal or, alternatively and preferably, that the appeal officer (who should not have had any previous engagement with the process) meet with the party bringing the appeal to ascertain precisely what the grounds of appeal are. An outcome meeting should then take place at the conclusion of the process. The complainant elected to go straight to the formal investigation option as indeed was his entitlement. The policy does note that the formal investigation “may be considered the least satisfactory method for resolving the issue as it merely determines whether harassment, sexual harassment or bullying took place, which may not provide a forum for resolution of the problem.” In other words the option of a formal investigation may be a blunt instrument in dealing with issues that might be better resolved by utilising one of the other options in the policy.    

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In summary therefore I find that there were issues which caused genuine concern for the complainant.   The complainant also had an underlying medical condition.  The respondent correctly sought a medical report and enquired of the complainant as to the cause of the stress in the workplace. The complainant then lodged complaints of bullying against his line manager and opted for a formal investigation of same. The investigation by an outside, qualified person was comprehensive and was conducted expeditiously and in line with the respondent’s Dignity at Work policy. The report did not find in favour of the complainant. The caveat I have is in relation to the appeal process and I have set out my thoughts in that regard above. I therefore recommend that the complainant utilise the recognised procedures that exist to resolve issues if and when they arise. I also recommend that the respondent re-examine the appeals procedure in their Dignity at Work Policy with a view to ensuring that it is more transparent and cannot be seen as merely a rubber-stamping exercise for the existing report.  

Dated:   25.01.2018

Workplace Relations Commission Adjudication Officer: Joe Donnelly

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