Complainant

Respondent

Anonymised Parties

A Business Development Manager

A Logistics Company

Representatives

Mr Gerry Mitchell

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-00017805-001

07/03/2018

The respondent is a global logistics company employing around 100 people in Ireland and 18,000 worldwide. The complainant worked for almost 11 years with the company as a business development manager, generating significant revenue during that time. This dispute is about the way the respondent dealt with an allegation against the complainant that he bullied a colleague, although an investigation concluded that he had no case to answer. The complainant is also concerned about the fact that, after he submitted his complaint about this to the WRC, his job was identified for compulsory redundancy. The investigation into the complaint of bullying resulted in a cost to the complainant in respect of legal fees and also impacted on his ability to deliver planned business targets, resulting in a financial loss to him in respect of commission.

In his submission on September 9th, the complainant listed seven points that he requested me to address:

1 Make a ruling on nine claims concerning the failings of the company in their handling of the complaint of bullying;

2 Instruct the respondent to forward the investigation file;

3 If no investigation took place, instruct the WRC to carry out an investigation;

4 Review the complaint of bullying and decide if the company’s response was acceptable and if the complaint was well-founded;

5 Carry out an investigation into two alleged failings on the part of the company with regard to its dealings with clients;

6 Make an award of redress that takes account of the fact that the complainant was made redundant on May 10th 2018;

7 Instruct the respondent to reply in writing to 22 questions submitted at the hearing on July 2nd.

Response to these Requests

This complaint has been submitted under the section 13 of the Industrial Relations Act 1969, as amended by the Workplace Relations Act 2015. In accordance with this provision, I am required to investigate the dispute between the complainant and his former employer, give my opinion on the dispute “and make a recommendation to the parties to the dispute.” I have no powers under this legislation to make a ruling on any matter or to instruct a person or body to do something. I am required to give my opinion on the issues raised by the complainant concerning how he was treated by his former employer in the way they conducted an investigation into a complaint made about him by one of his colleagues.

In relation to point 4 above, it is important to note that the outcome of a review of the complaint of bullying and the response of the complainant found that he had no case to answer. My role is not to re-open the investigation or review the complaint of bullying, but to consider if the way it was handled by the respondent was fair and in line with the Code of Practice for Addressing Bullying in the Workplace (SI 17/2002) and the Health and Safety Authority’s Code of Practice on the Prevention and Resolution of Bullying at Work.  

In relation to point 6, the complainant was made redundant on May 11th 2018. I understand that negotiations took place between the complainant and the respondent with regard to an enhanced redundancy package. I also understand a compromise could not be reached and that the complainant received his statutory lump sum plus pay in lieu of three months’ notice. As this complaint was submitted on March 7th 2018, two months before he was made redundant, I can make no recommendation with regard to an enhanced redundancy payment.

Below is an outline of the complainant’s case, based on the information submitted by him in his complaint form on March 7th and 8th 2018, his evidence at the hearing on July 2nd, a further submission on August 12th and his final submission on September 9th.

Sequence of Events

December 6th 2017

In 2017, the complainant won a significant new contract for the company and his colleague was a member of the team supporting this new business. For convenience, we will refer to this colleague as “AB” and we will refer to the complainant’s line manager as “CD.” In mid-October 2017, when the first shipment was being done, AB was on holidays for two days and when she returned, it emerged that there were several unanticipated technical difficulties with the new shipments.   AB and a colleague drew up a standard operating procedure to deal with future assignments. On December 5th, it appears that AB had a meeting with the operations manager at which she told him that she objected to how the complainant communicated with her. On December 6th, she sent an e mail to the HR Manager in which she concluded that she was being “bullied out of her job.” Her allegations related to the complainant’s interactions with her over the previous two months and were about the number of e mails he sent to her, the fact that managers and customers were copied on the mails and that she perceived that she was being blamed for errors in the handling of shipments and client requests.

December 11th 2017

AB met with the HR Manager, the Operations Manager and a note taker to go through her grievance.   A copy of the notes of this meeting was submitted in evidence.

December 21st 2017

The complainant was informed that AB had initiated a grievance and was given a copy of the notes of the meeting of December 11th. He said that he requested that someone from the company’s HR Department in their headquarters in Dubai get involved in the investigation into the grievance.     The notes show that the HR manager confirmed to AB that a formal process was being followed. They also show that AB indicated that she could work with the complainant if he was willing to change his approach.

December 22nd 2017

The complainant acknowledged that he received the information regarding AB’s complainant and informed the HR manager that he was consulting with his solicitor. He said he didn’t want to be contacted about the matter until the new year.

January 2nd 2018

The HR Manager contacted the complainant on January 2nd and said she would like to meet him.   He said that he would be in contact the following week.

 January 7th 2018

The complainant said that he would send a written response to AB’s complaint “in a couple of days” and again requested that a member of the company’s HR department in their head office in Dubai become involved in managing the grievance. He also asked if his line manager, CD had been informed about the complaint.

 January 8th 2018

The complainant submitted a comprehensive response to AB’s complaint, comprising 10 pages and 15 attachments. Rejecting AB’s allegations, he made a series of claims about her behaviour, implying that she had intentionally caused damage to the new business he had secured. In his submission to the WRC he said that AB “had lied repeatedly” in her complaint. He made a number of other claims that “highlighted various inter-company procedural failures which had a serious negative effect on the project” that he had worked on for eight months. He stated that he had replied within eight working days of receiving the complaint and that he would “like the company’s written deposition on this subject within eight working days also.” He again asked for the head office HR team to get involved. He said that “this never happened.”

“As soon as my reply went back to HR and CD everybody went quiet and I was very much ignored from here on in. I e mailed the company on several occasions explaining the negative effect this was having on me and the lack of communication back from the company was unacceptable and upsetting. I had no reply and not one person from HR or any management team asked me how I was.”

January 9th 2018

The HR Manager acknowledged receipt of the complainant’s e mail and said,

“As discussed, I need to be able to consider who from HR Head Office be involved and will of course come back to you on this point.”

The complainant responded on the same day and questioned why the HR Manager had not familiarised herself with AB’s personnel file. He claimed that AB had a “personal vendetta and that “…problems were caused intentionally to my clients because of this vendetta. This is why I want HR and head office involved to ensure that the company’s duty of care towards myself is acknowledged.”

January 17th 2018

For the fifth time, the complainant sent a request for a HR person from head office to be involved in investigating AB’s complaint. In his e mail on this day he said:

“The current continued saga is seriously affecting the business (and my health) as I am not willing to liaise with CD or AB professionally until this is resolved. They have made serious and false allegations against me and the company has failed to deal with this in a professional manner. I expect that this will be resolved by tomorrow when AB and the company confirm their respective positions. Otherwise my solicitor will be directly involved.   Please keep in mind that this was not my doing and the company is not acting on its duty of care towards me leaving me in this position. Please respond to my e mail – because so far I have just had empty promises and acknowledgements, which is not acceptable either.”

January 18th 2018

In an e mail to the HR Manager, the complainant said that he wanted this issue “dealt with today, which is the timeframe outlined in the company’s grievance procedure. Otherwise I will be making a formal complaint to the workplace relations commission.” This e mail was copied to the conciliation and mediation services at the WRC and the company’s CEO. The HR Manager informed the complainant that the investigation into AB’s complaint had been “outsourced to a HR Agency.”

January 19th 2018

An independent consultant appointed by the company contacted the complainant and said she would be dealing with the matter from here on. In his correspondence of August 12th, the complainant reiterated his serious concerns about how the company was dealing with this matter, stating that January 19th was “…a total of 39 days from the start of this process on 11/12/17 until 19/1/18 that any of my questions and concerns were not answered by (the respondent) and it’s all proven with my e mail evidence. Far from the 14 days it was supposed to take via the company’s grievance procedure.”

January 26th 2018

In his submission, the complainant included a copy of a letter from his solicitor to the company’s HR Manager dated January 26th 2018. In the letter, the solicitor points out that, in the way it conducted the investigation into AB’s complaint, the company has not followed its own grievance procedure by failing to use an informal process in the first instance. It is apparent from the e mails included in the complainant’s submission that the HR consultant contacted the complainant’s solicitor by telephone at the end of January.    

February 2nd 2018

In an e mail to the consultant on February 2nd, the complainant said:

“As already advised I will be counter complaining against AB for destroying my work last year as soon as I get the results of the investigation.

“Can you please let me know when you are sending this as you mentioned Monday and it’s now Friday.” He repeated this request on February 5th.

February 7th 2018

The independent consultant wrote to the complainant with the outcome of her investigation:

“I refer to the complaints made against you to which you responded on 8 January 2018.

“Having given consideration to the detail of the complaints, and the response provided by you, we have concluded that there is no case to answer in respect of the complaints. The matter, therefore, requires no further investigation.

“The review of the documentation does, however, highlight a number of concerns and areas in which the company can improve how it operates and how we conduct our business. There will be further communication and appropriate action taken, with the relevant staff in due course.”

February 9th 2018

The complainant responded to the investigator:

“The below reply is totally unacceptable and again it would appear that the person who is making the final decisions on all of this and pulling all the strings is actually CD. Why haven’t I had the results of the investigation and answers to my questions?

“From the very outset of all this my employment rights have been trampled on and this is not new to me. My solicitor already stated so in this letter to (the HR Manager) that the company has failed to reply to. CD needs to understand that you cannot continuously ignore a member of staff and not provide answers to this serious allegation that I have been subjected to.   If CD has not been making the final decisions on this complaint (and my response) please confirm the name of the person who is making the final decisions regarding the handling of this complaint?

“This kind of treatment towards me is not new and I have already had informal discussions with CD and (the operations manager) last year, discussing my treatment compared to other staff.

“As a gay man answering to CD, I feel now that his duty of care towards me has been in reverse gear for the past two years. I feel that I am at the bottom of his list and it appears that any kind of decision-making will always go against me.

“I am now requesting that these issues are discussed and resolved because I am becoming less and less comfortable answering to CD. It has been issue after issue and ‘ignoring (the complainant)’ seems to be the order of the day. I get treated differently from other employees and I am not accepting it anymore.”

February 12th 2018

In his correspondence to the WRC, the complainant included a copy of a letter from his solicitor to him on February 12th 2018. The solicitor confirmed that he was in contact with the independent consultant and that she had explained that she was not an investigator and that her job was to consider if the complaint should be sent forward for investigation.   The letter went on to advise the complainant:

“When you receive her decision please contact (us) and we can advise you on how best to proceed. If the decision is not to proceed with an investigation then you can decide whether you want to make a complaint to the company that it was a frivolous and vexatious complaint.”

February 13th 2018

CD sent an e mail to the complainant confirming that the mail sent by the HR consultant on February 7th was not initiated by him, but was the conclusion of the HR consultant, having considered the complainant’s response to AB’s allegation of bullying.

 February 19th 2018

The e mail correspondence provided by the complainant shows that on February 19th, he had a meeting with his manager, CD and the HR consultant. On February 22nd, CD wrote to the complainant to request a meeting the next day to follow up from their meeting of the 19th and to address issues related to commission on specific projects. As compensation for loss of commission due to difficulties on the project that he was working on the previous October / November, the complainant had requested 10 additional days’ holidays.   He also asked for the company to pay €1,500 towards the legal expenses he incurred when he sought advice about how to respond to AB’s complaint.

February 23rd 2018

CD offered compensation based on loss of commission of €460 or two additional days’ holidays.   He asked the complainant to work with another person to review the commission figures to ensure that they were correct but he rejected the complainant’s request for 10 days’ holidays and his request for reimbursement of his legal fees.

While he said that he was 100% focussed on work, the complainant said that he was considering making a formal complaint against AB and the company’s handling of her complaint, claiming that it was “frivolous and vexatious” and that the company had provided her with a “platform” to make the complaint. He said that the complaint had “taken me out of the business for two months” and that this will impact on his commission earnings in quarter one and two of 2018.   He asked CD to address this.

February 27th 2018

CD replied to the complainant and said he would address the commission issue if new information emerged from the review process. He said that quarter one and two’s commission would be “viewed after the event and in line with our current agreements.” He said that AB’s complaint was closed with the issuing of the outcome by the independent consultant.

Also on February 27th, CD sent an e mail to all the employees in the Irish business reminding them of the protocols to follow when interacting with each other by e mail or on the telephone.

March 7th 2018

The complainant submitted a complaint about this matter under section 13 of the Industrial Relations Act 1969.

March 30th 2018

A re-organisation programme was announced which resulted in nine redundancies. One of these redundancies was the complainant’s job of Business Development Manager. On May 11th, his employment was terminated.

Summary of Complaints

In his submission of September 9th, the complainant summarised the complaints of March 7th under nine headings:

1   The company failed to comply with its own grievance procedures during the investigation of AB’s complaint.

2   The company failed to keep the complainant adequately informed during the process.

3   The company and (CD) failed to provide an adequate response to the written process which was initiated against the complainant.

4   The company and (CD) failed in their duty of care towards the complainant by not ensuring that there was due process.

5   The company failed to investigate the complaint and the complainant’s reply and therefore failed to establish the level of financial losses he suffered and the effect this had on his performance.

6   (CD) and the company ignored most of his questions and emails and failed to reply to any of his requests for clarification, causing additional stress and personal upset.

7   The company and (CD) failed to protect the complainant from a vexatious and frivolous complaint.

8   (CD) closed the issue off on 27th February and denied the complainant his right to complain against a vexatious and frivolous complaint, denying him equal status.

9   (CD) and (the operations manager) provided all the required support to AB to take a vexatious and frivolous complaint against the complainant and did not offer him the same level of support, therefore, denying him equal status.

The following is the submission sent to the WRC on June 27th 2018, with the names of the parties anonymised.

Background

On December 6th 2017, AB, a member of the support staff, submitted a complaint in relation to conflict she claimed she was experiencing with the complainant over the previous two months.   AB claimed this arose from a particular project that she and the complainant were involved in.

A meeting was held with AB on December 11th 2017 attended by the operations manager and the HR Manager to examine AB’s complaint in accordance with the terms of the company Grievance Procedure. It was explained to AB at this meeting that the matter would have to be raised with the complainant in order to give him an opportunity to respond to the allegations made.

AB advised management that she wished to have the matter dealt with formally. In addition, AB made it clear that she did not wish to have further personal contact with the complainant and that she was not prepared to sit in a room and discuss any of these issues with him.

On December 22nd 2017, the complainant was provided with details of AB’s complaint and minutes of the Grievance meeting held with her on December 11th. The complainant was offered the opportunity to meet with management in order that he could respond to the issues raised. The complainant refused this offer, in addition to refusing to have the matter heard by the Operations Manager, who had been appointed to deal with the issue.

The complainant submitted a formal written response on January 8th 2018. The company appointed an independent consultant to undertake a review of the complaint made by AB and the complainant’s response. On Wednesday February 7th 2018, the consultant wrote to the complainant indicating that this review had concluded that there was no case to answer and that the matter required no further investigation. The consultant concluded her email to the complainant by stating:

“The review of documentation does however highlight a number of concerns and areas in which the company can improve how it operates and how we conduct our business. There will be further communication and appropriate actions taken, with the relevant staff, in due course.”

The complainant replied to the consultant by email on February 9th 2018, and copied CD and the HR Manager. In his mail he put forward the view that the email received from the HR consultant the previous day appeared to be “CD’s words,” in addition to stating that it appeared that it was CD who was “pulling the strings” in relation to this matter.

CD responded on Tuesday February 13th 2018, confirming that the email sent by the HR consultant was entirely her work, with no input to it from any member of the company’s staff. CD concluded by requesting a meeting with the complainant in an attempt to find a satisfactory resolution to all the issues.

CD and the HR consultant met the complainant on Monday February 19th 2018. At this meeting the complainant sought compensation for commission, which he claims he lost while dealing with AB’s complaint or 10 days’ holidays. He also sought payment of €1,500 in legal fees which he claimed he incurred dealing with AB’s complaint. CD declined this. Following this meeting CD undertook to consider points relating to commission on specific jobs and the contract commission model.

On Monday February 26th 2018, CD wrote to the complainant setting out the company’s response. He provided quarterly commission figures earned by the complainant in 2017. On the basis that the average commission earned for the first three quarters was €1,336, as against €876 in the fourth quarter, CD proposed a payment to the complainant of €460, to be paid through payroll or by way of two additional days’ holidays. CD also offered a further meeting to discuss matters.

On February 27th 2018, CD sent an email to all staff reminding them of the protocols to be followed when interacting with each other on a daily basis. This email restated the principles outlined in the company’s “Telephone, EMail and Internet Policy” which states that “all email messages must be worded in an appropriate and professional manner.”

The complainant submitted his complaint to the WRC on March 7th 2018.

In July 2017, senior staff were advised of a possible need to restructure the company and reduce operating costs and that this may involve some redundancies. On March 30th 2018, a reorganisation and restructuring programme was announced which resulted in nine job losses on a last In - first out basis. This programme impacted on the complainant’s role, and his employment was terminated on May 11th 2018. AB has since resigned.

Management Response to this Grievance

From the outset, the company set out to deal with AB’s complaint in accordance with agreed procedures. Having had an initial meeting with management to elaborate on her grievance, AB made it clear that she did not wish to have further personal contact with the complainant and that she was not prepared to sit in a room and discuss any of these issues with him. Furthermore, AB requested that the matter be formally investigated.

The complainant was offered the opportunity to meet with management to respond to the issues raised. However, the complainant refused this offer, in addition to refusing to have the matter heard by the operations manager, who had been appointed to deal with the issue. It is unclear why the complainant chose this course of action.

The complainant suggested that the company’s head office HR Department, based in Dubai, should be involved. This request was both impractical and unnecessary as well as being beyond the provisions of the established grievance procedure.

In these circumstances, it was not possible to resolve the complaint through the informal procedure, leaving management with no option but to commission an external independent investigation.

Management did not ignore the complainant as suggested. A formal complaint had been received from one member of staff relating to another member of staff and in such circumstances, management had to remain impartial and avoid drawing any conclusions or taking any position on the issues complained of until they were fully investigated and reported on.

Management specifically rejects the complainant’s assertion that he was ignored during this time. It is a fundamental requirement (WRC Code of Practice on Addressing Bullying in the Workplace) that any investigation is carried out thoroughly, objectively, with sensitivity, utmost confidentially and with due respect for the rights of both the complainant and the alleged perpetrator. In such circumstances, management could not favour or be seen to favour the complainant over AB, as the complainant seems to have expected.

The HR consultant met with the complainant during the course of her investigation in January 2018. Following a period of consideration, she advised the complainant of the outcome of her investigation by email, on Wednesday February 7th 2018. Despite the fact that both AB and the complainant had each refused to engage with aspects of the internal procedure, the investigation and outcome was dealt with in a period of slightly over six weeks, which included Christmas. In this regard, management are absolutely satisfied that the matter was dealt with as quickly and efficiently as possible.

Management put forward specific proposals in response to the complainant’s claim that he had lost commission because of his involvement in preparing a response to AB’s complaint. Management clearly set out the complainant’s commission income through each of the four quarters in 2017 and put forward fair and reasonable proposals to address his claim by way of either a payment through payroll or two days holidays in lieu. The complainant’s demand for up to 10 days additional leave was neither justified nor reasonable in light of the 2017 quarterly commission earnings as demonstrated by management.

The complainant’s request that management refund him €1,500 for legal costs incurred in connection with his response to the complaint was never approved by management in advance, and would not have been approved, as it is contrary to company policy as well as being at odds with the requirement to respect the rights of both parties.

The company took AB’s complaint in good faith and sought to deal with it in accordance with the internal grievance procedure. The company absolutely rejects the complainant’s assertion that it failed to protect him from a frivolous and vexatious complaint. An external party thoroughly and speedily investigated the matter and findings issued which concluded that there was no case to answer. The findings did however “…highlight a number of concerns and areas in which the company can improve how it operates and how we conduct our business.” The company is absolutely satisfied that it acted in an appropriate manner, in keeping with best practice and in circumstances where both employees did not fully co-operate with established procedures.

The complainant says he is unhappy with the manner in which CD handled the complaint. CD appointed the operations manager, a senior employee to investigate this matter in accordance with established grievance procedures. The operations manager was assisted in this regard by the HR Manager. When the internal procedure became impossible to conclude due to a lack of involvement by both the complainant and AB, CD appointed an external investigator. CD took no part in the investigation and only re-entered the process after the findings were issued and subsequent matters were raised by the complainant.   It is absolutely refuted that CD mishandled this matter or failed in any way in his duty of care to the complainant.

The complainant was advised of the complaint against him, provided with all the documentation, his input was sought and he was advised of the outcome and given the opportunity to meet with management to discuss any issues which arose, for example, the issue of commission.

AB initiated the complaint, not the company. The company had to respond in accordance with best practice and codes of conduct.

The complainant was advised of the outcome of the HR consultant’s investigation as soon as it was completed, within a reasonable timeframe. The complainant’s view that he should have been kept “adequately informed” during the process is totally at odds with his refusal to co-operate with the operations manager as the appointed company investigator.

The complainant’s claim that the company failed in their duty of care towards him by not ensuring that due process took place is at odds with the facts as outlined. On receipt of AB’s complaint, management immediately commenced an investigation of the complaint under the established grievance procedures and when both parties refused to fully participate, the management referred the matter for independent external investigation. The complainant’s claim is absolutely refuted by management.

The complainant claims that management has denied him his right to complain against a frivolous and vexatious complaint. It is unclear what the complainant expects management to do. An employee lodged a complaint, management investigated it, the findings were advised to both parties, certain actions were taken and proposals were put to the complainant relating to commission losses incurred, which he rejected.   The matter was not considered by the external investigator to be either frivolous or vexatious and in such circumstances, there is no further scope for management action.

AB was categorically not provided with any support to assist her in making her complaint by CD or the operations manager. She did so of her own volition and without the knowledge of either party. Such an allegation by the complainant is without foundation and wholly unsupported and should be withdrawn. Furthermore, to suggest that the complainant has in some way been denied equal status in the manner in which this investigation has been conducted beyond belief as well as being totally unsupported by the facts of the matter as outlined.

The complainant was made redundant on May 11th 2018.   He accepted a redundancy payment.   “Without prejudice” discussions took place at the complainant’s request but terms of the settlement could not be agreed and therefore the company returned to the statutory redundancy process that had already commenced with him. Redundancy was confirmed and the complainant dictated the date on which he was to be made redundant.

For all the reasons outlined above, the company is requesting that the adjudicator rejects this complaint in its entirety.

The complainant has asked me to consider nine issues and I will address each one in the order that he presented them.

Issue 1: The company failed to comply with its own grievance procedural protocol on a number of occasions during this whole process.

From the evidence of the complainant, I understand this issue to refer to the fact that the respondent failed to deal with AB’s complaint in an informal way, in accordance with its grievance procedure. He also complains that the respondent failed to deal with the matter in accordance with the timelines set out in the procedure.   Finally, he argues that there is no provision in the grievance procedure to appoint an independent person to deal with a complaint.

The grievance procedure was produced by the respondent at the hearing.   Under the heading, “Informal Procedure,” it states:

“It is often preferable for all concerned if grievances can be dealt with informally. The informal procedure for dealing with grievances is outlined below.

“If you have a grievance, you should:

“Approach your manager who will discuss the matter with you in private, or,

“If you feel that approaching your manager would be inappropriate or cause you difficulty (for example, if the problem or dissatisfaction is with your immediate manager), you should raise the matter with a more senior member of the Management Team.

“Your manager or the alternative person will make every effort to resolve the matter informally by discussing the matter with you and facilitating an acceptable outcome. If discussing the issue informally does not result in an acceptable outcome, you may invoke the formal procedure as outlined below.”

The procedure then goes on to set out the formal procedure for dealing with grievances.

In their submission at the hearing on July 2nd, Mr Mitchell said that “AB advised management that she wished to have the matter dealt with formally.”

I have reviewed this statement and I have considered the following facts:

In her e mail of December 6th when she put her complaint in writing to the HR Manager, AB said:

“You have asked me to have a think about what resolution I want from this.

“At present, I feel I am being bullied out of my job.

“I would like it to be addressed with (the complainant) how he speaks to me and how he conducts himself with me.   Just simple teamwork and courtesy, so that we can all work together.

I would like to add I don’t want to deal with him any more, on any level, and I certainly do not want to deal with him in a HR room, face to face position.”

While there are contradictions in this statement, nowhere in the e mail does AB say that she wants her complaint dealt with formally, or that she doesn’t want it dealt with informally. In fact, she makes no reference whatsoever to the company’s grievance procedure.

It is strange therefore to find that the meeting on December 5th opens with the following statement:

“(The operations manager) opened the meeting by confirming that everyone was present to attend a grievance hearing following the submission of AB’s formal grievance e mail. (The operations manager) confirmed that this was a formal process in line with the Company Grievance Policy.”

Further in the opening paragraph, the notes show that:

“(The operations manager) confirmed that on 5th Dec last week, AB had come to him upset and he suggested involving HR. Following this, AB submitted her formal grievance to (the HR Manager) which has resulted in this hearing.”

I find no evidence that shows that AB wanted her complaint dealt with formally. I’m not certain that AB looked at the grievance procedure or that she considered her options with regard to how her complaint would be dealt with. She said that she would like her complaint “to be addressed (with the complainant) how he speaks to me and how he conducts himself with me.” Nowhere does she say that she wants the issue dealt with formally.

In their submission, the respondent said that, on December 22nd, the complainant was offered the opportunity to have the matter dealt with informally, by meeting with the operations manager. I find this difficult to accept this statement because, 11 days earlier, on December 11th, the operations opened the meeting with AB by saying that they were in a “formal process.”

It is my view that this complaint merited an informal approach in the first instance. In her e mail of December 6th, AB was clear about what she wanted and how she wanted things to change. The operations manager should have sat with the complainant the following day and, in clear terms, informed him about the effect his behaviour was having on AB.   Following this intervention, if the complainant failed to consider the effect he was having and if he failed to address the problem, the formal procedure could have been invoked.

Conclusion: Issue 1

I find therefore that the complainant is correct in respect of this matter; the respondent failed to follow its own grievance procedure and deal with this complaint in the first instance by using an informal process.

I wish to briefly address the complainant’s concern that the company did not adhere to the timelines in the grievance procedure. It is my view that, in complaints of bullying, it is almost impossible to conclude investigations in the timeframe set out in a grievance procedure. This complaint was aired in the first instance on December 6th 2017.   From the e mail sent by the complainant to the HR Manager on December 22nd, it appears that the company wanted a speedy resolution:

“I understand that you wanted this dealt with over the Christmas period but this is not possible and I do not wish to be contacted about this subject until the new year.”

A conclusion was communicated to the complainant on February 7th 2018. While I appreciate the stressful effect the complaint had on the complainant, with Christmas and the new year intervening, I find that this timeframe from December 6th to February 7th was not unreasonable.

At the hearing on July 2nd, Mr Mitchell said that the company appointed an independent consultant because the complainant refused to engage with the operations manager to have the complaint dealt with informally. He said that “in these circumstances, it was not possible to resolve the matter through the informal procedure” and that this left management “with no option but to commission an external independent investigation of the complaint.” As an explanation for engaging the independent consultant, this doesn’t make sense, because a decision was made as early as December 11th, at the first meeting with AB, that her complaint would be managed in accordance with a formal procedure.

It is my view that the involvement of an independent person to deal with a complaint of bullying generally results in a more acceptable outcome than an investigation carried out by a member of management. The appointment of the external consultant was a positive intervention; however, I find that the explanation for the appointment, as outlined in the respondent’s submission, does not stand up.

Issue 2: The company failed to keep me adequately informed during this process.

In his submission, the complainant refers to SI 146/2000 which is the Code of Practice on Grievance and Disciplinary Procedures. This provides that an employee who is subject to a grievance process or a disciplinary investigation has “a right to a fair and impartial determination of the issues concerned, taking into account any representations made by or on behalf of the employee or any other relevant or appropriate evidence, factors of circumstances.”

The facts are as follows:

On December 21st, at a meeting with the HR Manager, the complainant was given a copy of the notes of the meeting with AB on December 11th 2018. He was asked to respond and the following day and he said “I am currently engaged with my lawyer and I will be meeting him in the new year.” On January 2nd, he said he would not be replying that week. On January 7th, he asked two questions:

1 Can someone from the head office HR team get involved?

2 Has my line manager been informed of the complaint and if so, when?

On January 8th, it appears that the complainant had a discussion with the HR Manager, as he wrote to her in an e mail:

“I note that CD has been informed verbally about this complaint but has not been given a copy of the complaint.”

He again asked if someone from head office had been appointed to consider the complaint. The HR Manager replied the following day saying, “I need to be able to consider who from HR Head Office be involved and will of course come back to you on this point.”

On January 17th, the complainant wrote again to the HR Manager:

“I am still waiting for reply to my initial questions on the bottom of this mail.”

From my examination of the e mails, I can only identify the two questions referred to above. The HR Manager said that she would respond about the HR head office person, and she told the complainant that his manager had been informed about the complaint.

On January 26th, the complainant’s solicitor wrote to the HR Manager and asked the following questions:

1 Has the operations manager concluded the investigation?

2 When will the outcome be communicated to their client?

3 Has AB been informed of the outcome and if so, when was she informed?

4 Please provide an explanation for the appointment of an external consultant to deal with the complaint.

5 What steps have been taken to deal with the complaint in accordance with the grievance procedure?

On January 31st, the HR consultant contacted the complainant’s solicitor by telephone as she wrote to the complainant saying,

“I have just been speaking to your solicitor, so I’m sure he will talk to you in due course.”

It is unclear if the complainant spoke to his solicitor because five days later, on February 5th, clearly becoming frustrated, he wrote to the HR consultant and the HR Manager in the company:

“I would appreciate if you could advise me what is going on with the results of this investigation.

“I am waiting for the results of the investigation and I would like to know when I will receive this?

“These false allegations are still hanging over me and I have not been informed officially what AB’s response is.

“I will be counter complaining against AB for intentionally destroying the project I worked on last year.

“I have already stated that I believe this is part of a personal vendetta against me.   I believe AB has intentionally targeted my project in order to undermine it and destroy my attempts to successfully secure new business for the company.

“This is a blatant attempt to cause damage to (the respondent’s) product and any attempt to ‘brush it under the carpet’ by certain Management will not be accepted by me.

“I believe she operated this way last year because she was not happy with the extra work that I was securing because it increased her workload. I believe she has caused ‘operational issues’ on purpose and this situation has been left to continue.

“I truly believe this should be investigated – which is why I asked for Head Office to be included in proceedings on 22/12/17. However, the company have not considered this and have not honoured my request which is disappointing.

“I put it to you now that Management are well aware of the issues that AB has caused but don’t know how to deal with it.

“The irony is that I am actually fighting for the company’s interests here. I have attached a copy of my sales figures which show that I have brought €15 million to the company since I joined in 2007.

“I would appreciate a reply to my mail and an official update on what is going on please.”

The purpose of repeating the full text of this e mail here is to show that it does not contain any questions, apart from, “when will you let me know what’s going on?” Two days later, he was informed by the HR consultant that she had considered AB’s complaints and the response provided by the complainant and she concluded that no investigation was required and that he had no case to answer.

It is my view that the respondent answered the questions that the complainant asked in his e mail on January 7th. The answers are that his manager was informed about AB’s complaint and the company did not involve anyone from the head office HR Department.

In response to the letter from his solicitor on January 26th, the HR consultant phoned the solicitor and had a conversation with him on January 31st, following which she said, “I’m sure he (the solicitor) will talk to you in due course.” The solicitor did not write again to the company, and, on this basis, I have to conclude that he was provided with the answers he requested in his letter.

Conclusion: Issue 2

I have considered the complainant’s allegation that he was not kept informed of what was going on during the processing of this complaint.   Having decided (wrongly, in my view) to proceed in accordance with a formal process, the company acted reasonably by giving the complainant a copy of AB’s initial e mailed complaint and the notes of the meeting with her on December 11th. In response to a letter and questions from his solicitor on January 26th, the HR consultant phoned the solicitor on January 31st to answer his questions. I find it difficult to discern any gap in the information provided to him. I have no doubt that it was difficult to be at work and to be productive from early January until February 7th, which is the day the complainant was informed that an investigation would not take place and that there was “no case to answer.” However, I cannot identify any significant information that was withheld from the complainant which resulted in him being treated contrary to the provisions of the Code of Practice on Grievance and Disciplinary Procedures.

Issue 3:   The company and (CD) failed to provide an adequate response to the written process, which had been initiated against me.

In his submission, the complainant referred to section 6.2.b of the Code of Practice on Workplace Bullying published by the Health and Safety Authority.

“The person complained against should be notified in writing that an allegation of bullying has been made against him/her. He or she should be assured of the organisation’s presumption of his or her innocence of any wrongdoing at this juncture. He/she should be advised of the aims and objectives of the formal process and procedures and time frame involved and the possible outcomes. He/she should be assured of support as required throughout the process. A meeting should be organised at which he/she is given a copy of the complaint in full and any relevant documents including the Bullying Prevention Policy.”

The complainant’s position is that he responded to the written complaint he received on December 21st 2017. He addressed all the issues raised by AB, and, in his response, he raised what he considers to be “serious issues” about AB’s conduct and the company’s treatment of him during the previous two years. He argues that the company did not address the “counter claims” he made against AB, and particular his allegation that AB was engaged in an intentional breach of data protection regulations. At the hearing on July 2nd 2018, the complainant submitted a list of 23 questions that he said that he raised during the investigation process which were not answered by the respondent.

Issue 3:   Conclusion

In his response to the complaints of AB, the complainant made allegations about AB’s behaviour, her work ethic and her motivation with regard to certain matters at work. It seems to me that, if AB had not raised issues about the complainant’s communication style, it’s unlikely that he would have “counter claimed” about her.

It is my view that the conclusion that the complainant had “no case to answer” was an adequate response to its consideration of the complaints of AB and the response of the complainant. At this point however, an intervention was required by the HR department to try to re-establish normal working relations between AB and the complainant and there is no evidence that this happened. There was nothing to be gained from opening a complaint into the conduct of AB, but a decision on this should have been communicated clearly to the complainant, instead of leaving him with the hope, or expectation that the issues he raised in his response would be answered.

Issue 4:   The company and (CD) failed in their duty of care towards me during this process by not ensuring due process took place.

Under this heading, the complainant refers to point 7 of the General Principles of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/200) which provides that an employee who is the subject of a disciplinary hearing is allowed to confront or question witnesses.   As the complainant was not subject to a disciplinary process, it would not have been appropriate for him to confront AB. During the time that this matter was being dealt with, he never asked for the opportunity to “confront” AB and, in any event, she had made it clear that she would not engage with him.

In his submission, he said that due process was not followed when the company failed to utilise the informal process in the grievance procedure and failed to comply with the timeframes in the procedure.   He also argues that a proper investigation was not carried out as the HR consultant did not meet with AB and she told his solicitor that she was not an investigating officer.

The complainant also said that no one in the company had any regard for the effect that the complaint and the subsequent process had on his health.   Finally, on the issue of due process, the complainant said that there was no provision in the company’s grievance procedure to appoint an external consultant to deal with AB’s complaint.

Issue 4:   Conclusion

An allegation of bullying is very serious and is recognised to have a negative and sometimes traumatic effect on the accused person.   It is my view that the company should have nominated a manager to support the complainant during this process and he should have been offered the opportunity to get support from an employee welfare programme or a counsellor.

“Due process” is about fairness and I have already stated that I have no issue with the company appointing an external person to deal with the complaint, albeit that there is no provision for this in the grievance procedure. The appointment of an external person does not render the process unfair. Under the heading of “Issue 1” above, I have already stated that the reason given by the respondent that they appointed an external consultant because he would not engage with the operations manager, does not stand up, and I agree with the complainant’s position on this issue.

Issue 5:   The company failed to investigate the complaint and my reply, therefore, failed to establish the level of financial losses I suffered during this period and the effect this had on my performance.

In support of his position on this issue, the complainant refers to the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the general principle that an employee has,

“… a right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

While this principle is intended to apply to an individual who is the subject of a disciplinary investigation, as an approach to a person accused of bullying, it provides a benchmark standard of fairness.

A review of how AB’s complaint was handled from start (December 6th 2017) to finish (February 7th 2018) might be useful at this point. It is clear from the notes of the meeting with AB on December 11th that a “formal process” is being followed. The operations manager concluded the meeting by saying, “we would hope to have a resolution within about a week.”   For some reason, AB’s complaint was only communicated to the complainant 10 days later, on December 21st.

In his e mail to the HR Manager on December 22nd, the complainant said, “I am currently engaged with my lawyer.” It is evident that he was angry and offended, and on January 18th, when he hadn’t received a reply to his response to AB’s allegations, he wrote to her again and said that he would make a complaint to the WRC. He copied this e mail to the WRC, his line manager and the company’s CEO.

Later on January 18th, the complainant was informed that the independent consultant had been appointed and she contacted him the following day. It is evident from the letter from the complainant’s solicitor on February 12th that he spoke with the independent consultant on January 31st and that she explained that she had not been appointed as an investigator, but that she was “simply standing in the shoes of management and the only decision she would be making was whether the complaint should be sent forward for investigation.”   It seems to me therefore that the “formal process” took a couple of steps back with the intervention of the consultant, and her role was to explore the possibility of a conclusion without going down the investigation pathway.

On February 7th, having reviewed the documents, the independent consultant “concluded that there is no case to answer in respect of the complaints. The matter, therefore, requires no further investigation.”

The complainant was not satisfied with this outcome.   He felt that the issues he raised in his response to AB’s complaint had not been addressed. He also felt that he lost out on commission because of the failures of the company to provide clients with the service they expected under contract, failures, he said, were not of his making. The complainant’s submission shows that on February 19th, he had a meeting with the HR consultant and his manager, CD, followed by another meeting with CD on February 23rd. A review of the losses incurred by the complainant was carried out and CD proposed compensation of €460 or two weeks’ holidays.   The complainant’s request for payment for his legal fees was rejected.

Issue 5:   Conclusion

Having decided to appoint an independent consultant to “stand in the shoes of management,” the consultant decided not to conduct an investigation, as in her view, the complainant “had no case to answer.” I find that this was a reasonable conclusion to this matter, coupled with a plan to remind all employees of the importance of courtesy and consideration when communicating on the phone or with e mail.

The complainant disagrees however, and his position is that the issues set out in his response to AB’s complaint should have been investigated. As I have outlined under the heading of “Conclusion 3” above, I do not support this position. To open a complaint against a person making an allegation of bullying would deter others from making such complaints and can only be considered to be retaliatory.   I have already outlined what, in my view, should have happened when the independent consultant reached her conclusions, and I think that the complainant could have benefited from a greater level of support at this time.

I find no issue with how the company established the potential losses incurred by the complainant as a result of the problems that occurred in October and November 2017.

Issue 6:   (CD) and the company ignored most of my questions and emails during this process and failed to reply to any of my requests for clarification during this process. This caused me more stress and personal upset.

Conclusion

This complaint has been addressed under the heading of “Issue 2” above, where the complainant alleged that the company failed to keep him informed during the process.

Issue 7:   The company and (CD) failed to protect me from a vexatious and frivolous complaint.

Conclusion

I have reviewed AB’s complaint and I find that it was neither vexatious or frivolous. I find that the company had no role in “protecting” the complainant from this complaint and I find that any reasonable person in the same circumstances as AB would have acted as she did.

Issue 8:   (CD) closed the issue off on 27th February and denied my right to complain against a vexatious and frivolous complaint, as such, denying me equal status.

At the hearing on July 2nd, the complainant said that he feels that he was treated differently because he is a gay man.   He worked with the company for 10 years before AB made her complaint, and he presented no evidence of unequal treatment on the basis of his sexual orientation during that time. The issue of the complainant’s right to have his complaints about AB investigated have been addressed under the heading of “Issue 2” above.

Issue 8:   Conclusion

I find that there is no substance to the complainant’s allegation of unequal treatment on the basis of his his sexual orientation.

Issue 9:   (CD) and (the operations manager) provided all the required support to AB to take a vexatious and frivolous complaint against me and did not offer me the same level of support, therefore, denying me equal status.

Conclusion

There is no evidence that AB received any support from CD or the operations manager when she decided to make a complaint about the way the complainant communicated with her and the way he worked with her on their shared projects. Apart from my view that the respondent was wrong not to explore the possibility of an informal treatment of the issue, the managers had a responsibility to deal with her complaint.

Overall Conclusion

I have analysed the nine claims raised by the complainant in his submission of March 8th 2018 and his detailed response to each one in the document he sent to the WRC on September 9th. I agree with his contention that the company did not adhere to its own grievance procedure when, some time between December 6th and 11th 2017, a decision was made to deal with AB’s complaint by using the formal procedure, instead of dealing with the matter informally. If a member of management had sat down with the complainant and gone through AB’s e mail of December 6th, there may have been a possibility that he would have considered what she said and changed his approach. On the other hand, having read the complainant’s response to AB’s complaint, as set out in the document he sent to the HR Manager on January 8th, I have to concede an informal intervention may not have had a positive outcome. In conclusion however, I find that the complainant’s claim at issue 1 above is upheld.

Complaints of bullying require skilled intervention by management and it seems that this was missing in the case under consideration.   What started off as a formal investigation went off in a new direction when an independent consultant was appointed to “stand in the shoes of management” to consider if an investigation was required. This change in the process resulted in confusion and frustration for the complainant. It is evident that he felt ignored and isolated and that he couldn’t focus on his job.

It is my view that the way in which AB’s complaint was communicated to the complainant on December 21st 2017, lacked consideration for the effect it would have on him. He had to hold this information over Christmas and new year, as it is unlikely that he got an appointment with his solicitor until early January. On January 17th he wrote to the HR Manager, “The current continued saga is seriously affecting the business (and my health) as I am not willing to liaise with CD or AB professionally until this is resolved.” Someone on the management team should have intervened then to provide a point of contact for the complainant and to explain what stage the process was at.   I agree with the complainant that, in the manner in which AB’s complaint was communicated to him, and in their failure to appoint someone to support him in January and February 2018, the company failed in their duty of care towards him. In conclusion therefore, I find that the complainant’s claim at issue 4 is upheld.

The remaining seven claims are not upheld.

When the investigation into the complaint of bullying was finalised, the complainant asked his manager to compensate him with two weeks’ holidays and the cost of his legal fees. This was refused. I now recommend that the respondent pay the complainant €3,000, equivalent to around two weeks’ pay, plus €1,500 in respect of the cost of his legal fees.