ADJ-00009551

Worker

Employer

Anonymised Parties

A Mediator

A Local Development Company

Act

Dispute Reference No.

Date of Receipt

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

CA-00012474-001

13/07/2017

The Worker commenced her employment with the Employer on the 26th February 1998 as a Mediator. She is paid €446 net a week and works 21 hours. The Complainant appeals the process and findings of an investigation commissioned by the Employer into her complaint under the provisions of the Employer’s Harassment and Anti-Bullying Policy. She is seeking a decision that requires the Employer to undertake a new investigation of the Worker’s original complaint by an agreed third party with agreed terms of reference.

The Worker submitted a formal complaint under the Employer’s Harassment and Anti-Bullying Policy on 16th December 2016 setting out allegations that she was being subjected to bullying behaviour by one of her work colleagues. In response, the Employer engaged the services of an external HR consultancy to investigate her complaints. The Investigating Officer, Ms O conducted her investigation and issued her Report on the 22nd March 2017. She did not uphold the complaint but did set out a number of recommendations for the parties to consider. The Report was issued to the Worker by the CEO of the Employer organisation Ms K on the 27th March 2017 advising the Worker that she could lodge an appeal with the Chairman of the Board of Management if she so wished. The Worker confirmed her intention to appeal the findings by way of a letter dated the 5th April 2017. In response, the Employer established an appeals panel who, in advance of the appeal, requested the Worker to set out the grounds of her appeal. SIPTU on behalf of the Worker wrote to the appeals panel setting out same. The appeal hearing took place on the 20th June 2017 during which the union expanded in respect of the grounds of appeal. The union also suggested to the appeals panel that consideration should be given to the use of the Advisory Service of the WRC as a means of creating an improved working environment for the Worker. The appeals panel rejected the Worker’s appeal by way of letter dated 4th July 2017.

SIPTU on behalf of the Worker submits that in any case involving a complaint of bullying the process of investigation must be conducted in a manner that is reasonable and fair to all parties involved. S.I. 17 of 2002 sets out a best practice model for the conduct of such investigations. SIPTU submits that:

1.      The Worker was given no input into the selection of the investigating body.

2.      No terms of reference were issued by the Employer or the external HR firm for the investigation.

3.      Copies of relevant information submitted to the investigation were not provided to the Worker. Portions of documentation provided by the Employer were redacted. In addition, material and commentary provided to the investigation by the Worker’s manager, Ms L were withheld.

4.      The Report was issued as a final document without recourse to commentary or challenge by the parties involved even though this is provided for in both S.I. 17 of 2002 and the Employer’s own policy document.

5.      As a first option the Worker was not provided recourse to the informal procedure contained in the organisation own policy document.

SIPTU submits that the manner in which this investigation was established and conducted is fatally deficient and does not meet the appropriate required standard. The findings of the investigation because of the clear procedural irregularities cannot be regarded as being safe and on that basis, must be set aside.

The Employer denies the claim. In support of their position the Employer presented copies of the correspondence with the Worker and copy of the 480 pages Report.

The Employer submits that the Worker approached the CEO of the Employer, Ms K on the 13th December 2016 and made her aware of the alleged bullying and harassment. Ms K emphasized that every incident of bullying and harassment is treated extremely seriously by the Employer. A decision was made to appoint an external HR consultancy firm to conduct an investigation of the allegations. The investigation process, as per the Report issued on 22nd March 2017 was comprehensive and involved six stages. It addressed a number of matters raised by the Complainant. The key areas related to issues with allocation of clients and inappropriate behaviour allegations. The Complainant and the person accused of bullying and harassment (Ms C) were given opportunity to be accompanied to the meeting by a work colleague or trade union representative. The signed minutes of all the investigation meetings held and any additional information which was submitted during the investigation process was then shared with the Complainant and Ms C for their review and comments. Both the Complainant and Ms C were also provided with the opportunity to comment on the final comments made by one another.

The Report found no evidence to support the Complainant’s claims of bullying by Ms C. Nevertheless, the Investigating Manager has proposed a number of recommendations where processes and communication can be improved upon:

(i)               Mediation, which was declined by the Complainant.

(ii)              Clearer guidelines to be developed on client allocation, client assigning, re-assigning of clients, note taking and annual leave.

(iii)            Providing more transparency in the client allocations.

(iv)            Reconsidering options for caseload meetings to facilitate the Complainant attending.

(v)              Ms C to consult the Complainant in relation to her availability where appointments are marked as urgent.

The Report was sent to the Complainant on 27th March 2017 and she was informed of her right to appeal. The Complainant did so in writing on the 5th April 2017. Subsequently, a detailed letter setting out the grounds of appeal was issued by SIPTU on behalf of the Complainant on 22nd May 2017. The Appeal Committee of three external persons upheld the findings of the Report and made some recommendation in relation to future processes:

(i)               As a routine, the Informal Procedure, as set out in the Employer’s Policy to be adhered to.

(ii)              Consideration to be given to including input from parties in choosing an investigation team.

(iii)            Amendment of the Harassment and Anti-Bullying Policy to include the requirement that written Terms of Reference be developed for any future investigations.

(iv)            Amendment of the Harassment and Anti-Bullying Policy to include circulation of a final draft report to relevant parties prior to the completion of the report.  

The Worker was informed of the outcome of the appeal by letter of 4th July 2017.

The incidents that gave rise to the Worker’s grievance spanned from 2014. There had been ongoing communication between the Worker and her supervisor in relation to the matters in question. As the Worked felt that no appropriate action was taken she referred her complaint to the CEO of the Employer Ms K. Ms K immediately informed the Worker that cases of alleged bullying are treated very seriously. She commissioned an external HR firm to conduct an investigation. They did so in a very comprehensive manner and produced a 480 pages report. I note that throughout the process the Worker was consulted and her comments were sought. While the Worker’s complaint was not upheld the Investigating Manager made a number of recommendation. The Worker exercised her right to appeal and the Appeal Committee upheld the findings of the Report.

The Worker is seeking a determination as to whether or not the methodology utilised by the Employer and the Investigating Manager in establishing and conducting the investigation were of a sufficient standard that would allow the findings arrived at by the investigator to stand. In particular, the Worker outlined a number of points, which are addressed below:

(i)               The Worker had no input into the selection of the investigating body. The Employer confirmed that the Worker was not consulted on the selection of the investigation body. As an experienced independent body had been chosen it was believed that this was not necessary. Moreover, the Employer’s Anti-Bullying and harassment policy does not require this. The Employer now undertook to implement the recommendation of the Appeal Committee in this regard.

(ii)              No Terms of Reference were issued by the Employer or the external HR firm for the investigation. Parties agreed at the hearing that the terms of reference for the investigation were notified to the Complainant by letter of on the 20th January 2017. Copy was provided. The Employer undertook that the Harassment and Anti-bullying Policy would be amended as per the recommendation of the Appeal Panel.

(iii)            Copies of relevant information submitted to the investigation were not provided to the Worker. Portions of documentation provided by the Employer were redacted. In addition, material and commentary provided to the investigation by the Worker’s manager, Ms L were withheld. The Employer provided a copy of correspondence between the Appeal Committee and the Investigating Manager whereby the latter confirms that all information was shared with the Complainant. In the meeting with the Line Manager, Ms L, she read through the client distribution list presented to her by the Worker in their meeting on 6th December 2016. The purpose was to demonstrate that other staff had also been allocated challenging and complex clients. The Line Manager advised that she was not able to share the list with the Investigating Manager for client confidentiality purposes. This was noted in the minutes. All other information received was shared with the Complainant for her comments. I note the Complainant’s concerns that the list presented to the Investigation Manager may not be the same list she has presented to Ms L. However, I have no reason to believe that Ms L would present inaccurate details to the Investigation Manager.

(iv)            The Report was issued as a final document without recourse to commentary or challenge by the parties involved even though this is provided for in both S.I. 17 of 2002 and the Employer’s own policy document. I note that draft of the Report on the findings was not issued to the Worker in advance of the issue. However, I note that the Investigating Manager highlighted that the Worker was afforded every opportunity to contribute and comment on the minutes of the meetings held with the Worker, on the minutes of the meetings held with other relevant parties and on additional information which was presented during the curse of the investigation. The Investigating Manager spent over 10 hours with the Worker at different meetings. The Investigating Manager pointed out that while the Report was issued directly to the Respondent as per their policy guidelines, the Complainant was afforded the opportunity to make any final comments before the Report was drafted and issued to the CEO. The Employer undertook now to implement the recommendation of the Appeal Panel to amend the Harassment and Anti-Bullying Policy to include circulation of a final draft report to relevant parties prior to the completion of the report.

(v)              As a first option the Worker was not provided recourse to the informal procedure contained in the organisation own policy document. The Employer confirmed that no informal process was put in place following receipt of the complaint. It was not deemed appropriate to do so as there had been ongoing engagement with the staff members in question and it was believed that an external independent person investigating the matter was the course of action most likely to yield a fair result.

I note that the CEO of the Employer confirmed that she will endeavour to implement all the recommendations of the report and the Appeal Committee. She presented an email from the Worker’s Line Manager outlying the changes already being implemented. The Worker noted that she could not see any changes to date. Ms K undertook to ensure that the system is as fair as possible.

I have carefully considered the evidence and the submissions made and I have concluded as follows. While I recognise the Worker’s concerns I do not accept that there is anything to be gained, by either party, by revisiting the issues dealt with in the Investigation Report. Therefore, I do not recommend concession of the Worker’s claim.

I recommend that the Employer gives due consideration and proceeds promptly to implement all the recommendations of the Investigation Report and the Appeal Committee. These changes, if adopted and implemented clearly would go a long way to ensuring no repetition of the issues complained of by the Worker in the future and are in the interests of both parties.

Bullying harassment investigation, appeal of investigation report