ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00011944

Complaint(s):

Date of Adjudication Hearing: 16/03/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

Background:

The Complainant commenced employment with the Respondent on 7 September 2015 as a Trainee Manager in the store (L1) on an annual salary of €33,575. On 10 April 2017, the Complainant was transferred to the Respondent’s store in another location (L2) to work as a Department Manager and her salary was increased to €41,100. The Complainant is still employed with the Respondent in the capacity of Department Manager in L2 but has been on sick leave since 27 May 2017 due to Work Related Stress.

Summary of Complainant’s Case:

The Complainant was originally working in the Respondent’s store at L1. In April she was moved to their store in L2 where she was under the new management of B1. The Complainant outlined how she had worked with B1 for 6 weeks and out of those 6 weeks there were only two weeks where there were no issued. The Complainant alleges that since she was transferred to L2 she was subjected to an ongoing and constant barrage of bullying over a period of 6 weeks from her Manager (B1). The Complainant alleges that this commenced from when she was transferred from L1 to L2. The Complainant contacted the Respondent to inform them of the bullying and the Complainant argues that the procedures which followed were hugely flawed and the outcome was unfair.

The Area Manager (A1) was given the responsibility of undertaking Mediation. A1 is not trained and is inexperienced in this area and the Respondent had not adhered to its own training policy in this regard. A1 requested the Complainant attend L1 to meet with the alleged bully perpetrator (B1) on her own even though she was out on work related stress leave because of the treatment she was receiving from him. The Complainant declined this request and said that it would not be possible as the thought of it made her scared and extremely nervous. A1 did not seek written agreement from the parties prior to Mediation.

On 28 June 2017 both parties attended for the mediation meeting. At the outset A1 told them that he had never undertaken Mediation before. He was taken up with reading from Notes and while this was going on B1 turned his chair toward the Complainant and stared at her in an intimidating fashion. The Complainant was scared and full of anxiety. At no time during Mediation did A1 tell the parties that they could stop the process at any time if they were uncomfortable. Most of the time was taken up by A1 taking notes. The Complainant outlined that she had no confidence in B1’s sensitivity and A1 accepted the same. A1 did not inform the parties that as Mediation is a confidential process that these notes would be destroyed after the meeting. During the Investigation Process, A1 told B1 that he gave a “Good Effort” at Mediation. Due to inexperience in this area A1 does not seem to know that Mediation is a confidential process and should not have been brought into the Investigation process.

Following this mediation meeting, a formal complaint was issued by the Complainant and so a formal grievance investigation commenced. No Terms of Reference were drawn up by the Respondent on how the investigation would be conducted as is outlined in the WRC’s Code of Practice. The minutes from the meetings were not agreed by any party. The Respondent’s policy outlines that a Note Taker be present however there was no note taker present at any of the meetings. As a result of this flaw in the process, the minutes were not agreed and so cannot be relied upon.

The Complainant requested to view CCTV Footage which was used by A1 to decide the outcome of the Investigation. This Footage was also viewed by B1 and so the Complainant requested the same. The Complainant named witnesses to be interviewed and but none of them were interviewed. The Complainant reported that she was spoken to inappropriately, shouted at, berated in front of colleagues and customers. Had A1 interviewed these witnesses he might have gotten an insight into how the Complainant was treated by B1.

B1 reported that the Complainant was “Buddied” by E1 when she arrived in the store for one week. B1 chose to meet with E1 to establish same. In the notes (which are not agreed minutes) from the meeting E1 states that he met with the Complainant on her first day but does not say that he “Buddied” with her for a week. The Complainant alleges that A1 met with E1 in an effort to substantiate what B1 said. The Complainant then would like to know why A1 did not meet with the Witnesses put forward by the Complainant. In this regard, the Complainant questions the fairness of the procedure followed by A1.

The Complainant argues that the amount of time, two and a half months, to undertake the Investigation was exorbitant. The Complainant understands that Investigations can be time consuming when taking into account availability of witnesses etc. However in this case there were only 3 people interviewed during this Investigation, the Complainant, B1 and E1. This further added to the stress and anxiety that the Complainant was undergoing.

The Complainant emailed A1 on a number of occasions to ask why.

The Complainant argues that Bullying in many circumstances would be considered Gross Misconduct and this is also outlined in the Respondent’s Company policy under the list of Gross Misconduct.

This policy also outlines that “Witnesses are interviewed and written, signed statements are obtained” and so the Complainant would like to know why did the Respondent did not follow its’ own procedures in this regard.

The outcome of the Investigation found that B1 was inappropriate on 4 instances but that B1 did not bully the Complainant. The Complainant alleges that it was ongoing on a daily basis for 6 weeks in line with Point 10 on the Respondent’s list of Gross misconduct “Rudeness or conduct likely to give offence to …………..fellow employees”. The Complainant argues that the Company considers rudeness as gross misconduct but not the use of totally inappropriate language used by B1 when he referred to his team as “Monkeys” and also frequently asking “Who is going to lose their Job today”.

The Company procedures in relation to Appeal give a timeline for the Employee to appeal the Outcome but no timeline is given as to how long the Appeal will take by the Respondent. The Complainant argues that this also contributed to the unfairness within the procedure.

The Complainant requested at the Appeal Hearing and in writing that she have access to the CCTV Footage. The Appeal Manager, A2 denied the Complainant’s request and refused to allow her to view the CCTV footage. The Complainant requested once again at this stage that the witnesses be interviewed. A2 again denied this request and refused to interview the witnesses which were named by the Complainant.

The Complainant wrote an email to HR outlining her Financial Strain. HR advised her of a temporary position in L3. The Complainant replied that on the advice of her GP and the fact that she was not sleeping well the extra 3 hours travel to L3 would not be good for her health and wellbeing. She requested that should any position arise closer to her home she wished to be notified of the same and considered. The Complainant argued that 2 subsequent positions arose in August2017 and February 2018 but she was not notified or considered for the same and so this shows that the Respondent in no way assisted her in mitigating her financial loss during the past 9 months.

The Complainant outlined that she received a total of 13 payment of €3,161.53 per year. The Complainant outlined that she suffered a loss of earning to the amount of €28,453.84 for the duration of the 9 months while she was on sick leave. The Complainant also had other costs such as medical fees which amounted in excess of €1,500, counselling, advice and representation.

The Complainant also outlined how the HR Department have not made any contact with her during her sick leave to enquire as to how her health is. The Complainant outlined how the whole process has affected her health and wellbeing. The Complainant outlined that she feels like she cannot return to either store.

The Complainant alleges that the whole processed was flawed and unfair.

Summary of Respondent’s Case:

On 27 May 2017 The Complainant went out on sick leave and has been unavailable for work since this date. The Complainant has submitted medical certificates covering her absence, initially these cited ‘stress’ and subsequently ‘work related stress’.

On 30 May 2017, while on sick leave, the Complainant emailed the company’s HR Department to advise that the reason for her absence was due to treatment she felt she had been subjected to from the Store Manager, B1.She was advised initially by HR1 to raise the issue with B1 in the first instance as per the Dignity and Respect at Work Policy. The Complainant advised that she was not comfortable doing this. She was then advised to that the Respondent would contact the Area Manager, A1 to arrange a meeting for her.

On 17 June 2017 A1 held a meeting with the Complainant to get more information on the issue. A1 started the meeting by outlining the options available to the Complainant under the policy and it was agreed in the first instance to address the matter informally. The Complainant outlined that she was not happy to meet with the Respondent on her own. During the meeting the Complainant explained that she had worked for 6 weeks in L2 and that at first it was ok but then issues began to arise. The Complainant outlined the following issues;

• Example 1: The Complainant provided that, on approximately 17 May 2017 while getting ready for stock take she asked if stock could be left and counted in bags to which B1 replied “no”. The Complainant claimed she noticed that Children’s Accessories were allowed to leave their stock in bags. The Complainant felt this was unfair.
• Example 2: The Complainant explained that on Sunday 21 May 2017 an incident occurred whereby a fitting room had been left unattended for a period of time. The Complainant stated that following this incident she was on two days leave and returned to work on Wednesday, 24 May 2017. The Complainant alleged that on her return B1 approached her and queried what had happened on Sunday and that he claimed there was nobody working on fitting rooms for an hour. The Complainant submitted that B1 produced a number of tags and suggested that this stock had been stolen. The Complainant responded by telling B1 that she believed the fitting room was only left unattended for 15 minutes. The Complainant felt that B1 had spoken to her in an inappropriate manner and used a slightly raised tone. The Complainant further confirmed that the Trainee Manager (TM1) later told her that B1 had addressed this issue with him also.
• Example 3: The Complainant submitted that on the 25 May 2017 she went towards the fitting rooms with B1 and that there was nobody covering them. The Complainant stated that B1 said it had been this way for 30 minutes. The Complainant alleged that B1 started to give out and commented on the stores stock loss and that this was the second time this had happened. The Complainant stated that staff and customers could hear. The Complainant explained that staff members had heard as they later approached her to see if she was ok. The Complainant also noted that the Assistant Manager was also present for some of the conversation.
• Example 4: The Complainant stated that on approximately 19 May 2017 she reviewed reduced reports with B1 and they agreed a number of items which were to be reduced. The Complainant further outlined that the following day, during a floor walk, B1 picked out an item which he thought should have been reduced as per their conversation the day before. The Complainant submits that she tried to show B1 the previous day report and that this product was not an agreed line. The Complainant alleged that B1 told her he did not want to see the list.
• Example 5: The Complainant described a further incident with B1 on 24 May 2017. The Complainant alleges that as she was leaving B1 asked if she had zeroed stock on Saturday. The Complainant alleged that B1 pointed to an area of stock that was full of odd shirts and asked if she had zeroed this stock. The Complainant submitted that she responded by saying she wasn’t sure and would have to check her list. The Complainant stated that B1 then queried what procedure she used to zero stock. The Complainant submitted that she advised B1 she followed the procedure outlined to her by the Stockroom Supervisor (SS1). Additionally, the Complainant claimed that B1 then accused her of deleting stock off the store system.

Before the meeting concluded, the Complainant advised that she did not want to return to L2. A1 advised that he would be meeting with B1 and would revert to her in due course with next steps.

On 20 June 2017, A1 met with B1 and informed him of the allegations being made against him. B1 advised that he was unaware of any issues but agreed to sit down with the Complainant and for A1 to mediate to try to resolve any issues and work towards assisting the Complainant to return to work.

On 28 June 2017, a facilitated meeting took place between the Complainant and B1 with A1 as the mediator. Prior to the meeting A1 met with both parties to explain how the meeting would take place however neither party was given anything in writing which outlined the mediation process. Both parties confirmed they were happy with the structure and to proceed.

The outcome of the informal mediation session was: -

• Both parties agreed that they can work together as they had previously worked together on issues to resolve them collaboratively i.e. staff issues in the Respondent’s departments
• B1 explained that he really wanted the Complainant to return to work and that now that he was aware of the issues and how they made her feel he was confident that they could resume their good working relationship.       He stated that he is always willing to listen, however, he needs to be made aware of issues in order to address them and change.
• Both parties agreed that they hadn’t been working together for very long and so they didn’t know each other and each other’s approaches to situations.
• B1 listened and genuinely took on board what the Respondent had outlined and gave her a commitment that he was willing to do whatever it took to improve their working relationship.
• Both parties agreed that it was up to both of them to make it work and that issues needed to be discussed openly between them.
• Both parties agreed that everybody is different and managing people and emotions was a variable force.

The meeting concluded with the Complainant giving a commitment that she would think about returning to work. Minutes from mediation were send to the Complainant following the meeting.

On 30 June 2017, some two days later, the Complainant phoned A1 advising that while there was benefit in the meeting, she felt that she was not well enough to return to work, but that may change as she was receiving counselling.

To the Respondent’s surprise, on 10 July 2017, the Complainant emailed HR to raise a formal complaint against B1.

On 12 July 2017 an investigation meeting was held in the store at L1 with the Complainant by A1. The Complainant was offered the right to representation which she declined. Upon commencing the meeting A1 outlined the process to the Respondent and that there would be a delay of at least 3 weeks due to annual leave and other business commitments. A1 provided that he would give the case priority upon return. The Complainant accepted this and stated that she did “not want the process to be rushed”.

During the meeting the Complainant was given full opportunity to explain and clarify each point raised. A1 sought clarification on a number of issues and asked the Complainant what her ideal outcome was. The Complainant provided that her ideal outcome would be to return to work in the store at L1.

On 20 July 2017, the Complainant emailed HR to advise she was unhappy with the delay in the investigation. HR responded stating that the delay was unfortunate but reiterated that it was due to the annual leave of A1. In acknowledgement of the delay the HR department suggested to the Complainant that there may be an opportunity for her to work temporarily in their store at L3 pending the outcome of the investigation. The Complainant felt that L3 was not a suitable option.

On 15 August 2017 as part of the investigation, A1 met with B1. During this meeting the allegations were put to B1 and he was given the opportunity to respond.

On 18 August 2017, the Respondent was issued with relevant documentation relating to the investigation meetings and was given the opportunity to comment and respond to same.

On 25 August 2017, the Complainant sent a further email to A1 in response to B1’s interview and written response to her complaint.

On 11 September 2017, the outcome of the investigation was sent in writing to the Complainant by A1. A1 did not uphold the complaint of Bullying, but did find that at times B1 may have behaved in an unacceptable manner. A1 outlined that he made a decision in line with the company handbook. Rudeness is deemed gross misconduct in line with the company handbook but A1 felt that it was a misunderstanding

Based on these conclusions, A1 recommended the following;

1. B1’s behavior will be raised with him in line with normal company procedures
2. Both parties engage in a mediation process to work and build on a professional working relationship. The mediator would be an independent person not involved in this grievance investigation
3. The Complainant return to work once she has been certified fit to returnOn 29 September 2017, the Complainant exercised her right to appeal the outcome of the investigation by email.On 13 October 2017, an appeal hearing took place in the Respondent’s store in L3. In attendance were the Complainant and A2.The Respondent takes all complaints seriously and has internal policies and procedures in place to deal with such matters, however it must be acknowledged that Managers also have the right to manage. In this instance as soon as the Respondent was made aware of the issues they acted in line with their policies to address the issues. In addition to this, senior managers from the business were involved in the process.As highlighted in the Supreme Court case of Ruffley v. Board of Management St. Anne’s School a key question to be asked in any workplace investigation regarding bullying and harassment is whether the accused employee is guilty of repeated inappropriate behavior against the alleged victim over a discernible timeframe which could reasonably be regarded as undermining the alleged victim’s right to dignity at work. The respondent would contend that the alleged behavior did not occur over a discernible timeframe as the Complainant herself has confirmed the timeframe to be a period of four weeks. The respondent is also of the belief that that actions of B1 were not intentional and calculated to cause stress to the Complainant.The Respondent was therefore, disappointed and slightly confused when the Complainant decided to progress the complaint to the formal stage. The Respondent contends that the Complainant did not return to work after the informal stage and has still not returned, as such she did has not given the process a chance to address and remedy the situation.The Respondent submits that while B1 has acted inappropriately in certain instances as highlighted by the Complainant, many of these instances were not specifically directed at the Complainant while others were issues with B1’s communication style.
4. The Respondent is satisfied that B1 has shown a willingness to listen to the Complainant and change his communication style. As such, it is the Respondent’s belief that this issue could have been resolved with further mediation at local level carried out by an independent individual from within or outside the Organisation. The Respondent is open to allowing the Complainant return to the store in L1 for an initial period but also outlined that the Complainant could not be excluded from the transfer clause.
5. The Respondent reiterated that the company offered the Complainant an opportunity to return to employment temporarily in their store at L3 pending the outcome of the investigation. The Respondent contends it is clear from this that the company was eager to re-integrate the Complainant back in to the business.
6. It was the Respondent’s belief that, after the informal process the Complainant was satisfied with the process and outcome as she stated as much during her telephone conversation with A1 on 30 June 2017.
7. The Respondent acted reasonably and in accordance with the principles of fairness and natural justice and the Respondent’s internal policies in the manner in which it conducted its investigation process. The Complainant’s rights of natural justice were upheld at all times: she was advised of the process and engaged with an informal and formal process relating to her allegations, she was advised of her right to representation at all meetings, investigation meetings took place whereby relevant witnesses were interviewed, documentation was supplied to her for comment and review and she was provided with an opportunity to appeal the outcome.
8. On 31 October 2017 an appeal outcome letter was issued to the Complainant by A2. The outcome of the appeal was that A2 upheld A1’s outcome that no bullying and harassment had occurred.
9. On 06 October 2017 a letter was issued to the Complainant inviting her to an appeal meeting with another Area Manager (A2). The Complainant was advised of her right to representation.
10. The Complainant was given her right to appeal and the time frame in which to do so.

Findings and Conclusions:

Section 13 (3) of Industrial Relations Act, 1990 states the below.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Complainant was transferred to the Respondents store in L2 where she experiences difficulties a few weeks into her time there. The Respondent encouraged her to use the informal grievance procedure and then mediation. A1 was involved in both processes. The Complainant then chose to progress her grievance of the alleged bullying via the formal process of the Grievance Procedure. A1 who had already been involved in the informal and mediation process conducted the investigation and decided on the outcome of the investigation which found that B1 did not behave in an acceptable manner but did not uphold the complaint of bullying. As a result, especially in such a large company, the rules of natural justice including separation of process were not followed. As a result the Complainant has been out on work related stress since the incident occurred.

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

In accordance with Section 13 of the Act I declare this complaint is well founded.

Under the legislation I recommend that the Complainant be returned to her original role in the Respondent’s store in L1. The Respondent outlined in the adjudication hearing that this was currently possible and so I think this is a fair and reasonable request due to the size of the organisation. I also recommend that the Complainant not be requested to be transferred thereafter if it involves working with B1 to whom she raised the grievance against.

I also recommend that B1 receive training in Dignity & Respect of a minimum of a 1 days duration.

The Complainant has been absent from work due to work related stress for a duration of approximately 10 months at the date of the hearing. The Respondent has a large HR Department and suggested that she could return to their store at L1 at the adjudication hearing but did not offer her this option in advance of the hearing or have they proactively tried to engage with her regarding her to return to work.

This should be implemented as soon as possible.

Dated:   15/06/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery