Complainant

Respondent

Anonymised Parties

A Retail Worker

A Retail Chain

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-00015634-001

07/11/2017

The Complainant started work with the Respondent on 11th April 2012 as a Customer Assistant and is currently employed to work 20 to 25 hours per week earning €12.71 per hour.  

On 26th June 2014 the Complainant submitted a formal grievance to Management in relation to their alleged unacceptable behaviour towards him.

The Complainant is currently on sick leave.

BACKGROUND:

1.       The Complainant is a loyal, hardworking member of staff employed by the Respondent since June 2012 and he has an unblemished record of employment and received a number of awards for his service.

2.       On 26th June 2014 the Complainant submitted a formal grievance to management regarding the unacceptable behaviour he was being subjected to by his Line Manager. Meetings took place on three separate occasions.

3.       On 18th July 2014, Management produced their Grievance Outcome Report. The Complainant was not happy with the outcome of the report, particularly regarding the fact that it confirms he did raise a concern with Management regarding his Line Manager poking him in the chest in the fridge and the Manager failed to address the situation stating, “her understanding was that you the Complainant wanted nothing to be done about it”. One must ask the question why the Complainant would raise such a serious complaint, if he did not want anything done about it. Furthermore, Management’s blatant failure to investigate / address such a serious complaint is a clear breach of their Duty of Care towards the Complainant.

4.       Management’s behaviour towards the Complainant deteriorated from 1st August 2014 due to the Complainant’s beard.   It is important to note that in the Staff Handbook, Staff are allowed to have a beard once it is neat and tidy which the Complainant consistently states that he always keeps his beard neat and tidy.

5.       On 17th November 2014, the Complainant received a letter from LM inviting him to an Investigation Meeting on 21st November 2014 regarding the appearance of his beard.

6.       Over a 4-month period from August 2014, the Complainant was denied the opportunity to earn a living by Management, who suspended him without pay and did not bring him through the Disciplinary Process.   On 28th November 2014 the Divisional Organiser for his Trade Union wrote to Management regarding this issue.

7.       Following the continued unacceptable / unnecessary treatment, the Complainant was subjected to by Management regarding his beard, compounded by the physical and verbal abuse he was subjected to by his Line Manager, the Complainant suffered depression and was certified unit for work due to work related stress, which he is still suffering from today.

8.       Worried about her son, the Complainant’s Mother wrote to the Respondent’s CEO on two occasions regarding the unacceptable treatment her son was subjected to by Management. Her last letter to the CEO was on 31st January 2016.

8.1   Following receipt of this letter of 31st January 2016, Management held a number of meetings with the Complainant which culminated in an Investigation Outcome Report dated 1st July 2016.

8.2   Following receipt of the Investigation Report, the Complainant appealed same as per the Grievance Procedure. On 10th August 2016, the Complainant received a letter from the Area Manager South East acknowledging receipt of the Complainant’s Appeal.

8.3   Over a number of weeks attempts were made to arrange a date for the Complainant’s Appeal meeting. No suitable dates could be agreed between the Complainant and the Area Manager which resulted in the Area Manager writing to the Complainant on 30th September and 6th October 2016.

8.4   On 15th October 2016 the Area Manager wrote again to the Complainant stating that his failure to attend the meeting on 12th October, gave Management no option but to assume he no longer wanted to proceed with his Appeal.

8.5   Following receipt of this letter, the Complainant contacted his Trade Union Official outlining the difficulty he had in agreeing a suitable date for his Appeal with Management and the stress and anxiety that this was causing him. On 24th October 2016, the Trade Union wrote to the Area Manager outlining that the Complainant wanted to be represented at his Appeal by his Union Official and requested suggested dates for an Appeal Meeting.

8.6   On 10th November 2016, the Area Manager responded by email to the Trade Union’s letter stating that the Complainant failed to attend the scheduled meeting and that the matter was now closed.

8.7   On 15th November 2016, the Trade Union responded to the Area Manager’s email detailing the reasons the Complainant could not attend on the various dates suggested by Management.   The Trade Union also stated that failure to grant the Complainant an Appeal Meeting would leave no alternative but to refer his case to the WRC.

8.8   Management agreed to proceed with an Appeal meeting for the Complainant which took place on 19th April 2017.   Following the Appeal meeting, Management sent the Complainant the Appeal Meeting on 30th May 2017 which outlined that his Appeal was not successful.

8.9   Following receipt of the Appeal Outcome, the Complainant contacted his Trade Union Official instructing him to refer his case to the WRC.

UNION’S POSITION:

1.       The Complainant strongly contends that the treatment he was subjected to since early 2014 was totally unacceptable and a breach of the Company’s Dignity at Work policy. The Complainant reported to Management the physical abuse he was subjected to by his Line Manager early in 2014 and this can be seen in the Investigation Outcome Report of 18th July 2014. The Report states under the 2nd Grounds for Grievance heading “that you have raised this issue with the Line Manager several months ago...” and goes on to state under Findings that “I find that you had mentioned the above concern to the Line Manager and she mentioned that she can recall that you approached her to mention that KM had poked you on our chest in the back up fridge. However, her understanding was that you wanted nothing to be done about it”. This we contend outlines the blatant negligence of Management in failing to investigate such a serious issue i.e. physical assault, and is a total neglect by Management of their Duty of Care towards the Complainant. This unbelievable disregard of a Duty of Care towards the Complainant is further compounded by the fact that this Investigation also failed to deal with the issue in an appropriate manner and flippantly recommended that the Complainant be taken through the Dignity at Work policy.

Further proof of this can be seen in the Company’s Investigation Report dated 1st July 2016 which states “the relationship with team leader KM were reasons for the decision to move you off the counter”. One has to ask why was the Complainant moved and not KM who physically assaulted the Complainant which the Company failed to investigate. In fact, the Complainant did not agree to the move, which he was subjected to

2.       Following the above abuse towards the Complainant, Management began a vendetta against him because he had a beard, which the Complainant and his Mother, in her letter to the CEO strongly contends was kept neat, tidy and well-groomed, as per the Company Handbook. In fact, the Handbook does not identify/define what neat and tidy is. The treatment by Management of the Complainant regarding his beard was totally unacceptable and was a form of bullying and harassment that resulted in him being subjected to a 4-month unpaid suspension which was given to him without subjecting him to the Disciplinary Procedure, which is a blatant breach of Fair Procedures.

3.       Prior to the Complainant raising his initial grievance, he was continuously working between 30 and 35 hours per week. He received a number of awards for his Customer Performance. Following this grievance, he was subjected to the unacceptable behaviour by Management regarding his beard. His hours were reduced to the bottom of his band of 20 hours per week and he was continually moved to different departments. He would be given tasks to do and before he could complete them some other Manager would give him another task to do, which resulted in him being chastised by the first Manager for not completing his tasks.   When he was put on tills, Management constantly told him not to interact with Customers and to get out as quickly as possible.

4.       The Company blatantly neglected in their Duty of Care towards the Complainant and further exacerbated the situation by continually moving the Complainant in short spaces of time from one department to another. In the overall findings of the report it states, I have further found that you were moved to a number of departments over a short space of time with little evidence of proper training”.

5.       Management further failed in their Duty of Care towards the Complainant by not putting in place proper supports for him, when it was identified to them by his Doctor that he was suffering from work related stress. The Report identifies “A support plan should have been put in place to support you during our period of absence however this did not take place”. Despite this being identified in the Report of 1st July 2016, the Company have still failed to action same and to date no support plan has been put in place for the Complainant. It is the Complainant’s strong contention that to date, the Company have failed to properly address his Grievance and further evidence of this in the Company’s Appeal Outcome of 30th May 2017. The Complainant argues that this Report completely ignores the actions proposed in the Investigation Report of 1st July by not making any reference to them and compounded the situation for the Complainant by stating that his appeal could not be substantiated. The Complainant contents that the Company failed to act in a timely manner regarding his initial grievance in 2014 and in doing so exasperated the situation to a point that when the Company finally decided to do any sort of an Investigation, the main Culprits and Witnesses had left the Company.

CONCLUSION:

1.       The treatment that the Complainant was subjected to by his line manager we argue was assault and despite the Complainant bringing this to the attention of Management at an early stage, Management chose to ignore it by failing to investigate the Complainant’s serious complaint.

2.       The Respondent’s Handbook states “beards and moustaches should be neat and tidy and always well groomed”. It fails to define what neat and tidy and well-groomed should look like. The Complainant strongly contends that he has always kept his beard neat and tidy and well groomed. Management failed to supply him with the proper beard nets and instead of trying to resolve the issue in a timely manner, they compounded it by suspending him for four months without pay. Even when the Complainant sourced his own beard nets, Management refused to let him wear them and sent him home unpaid.   To date, the Respondent still has not brought in beard nets as a number of Staff on Fresh Food Departments throughout the Company who have beards do not wear beard nets.

3.       Management blatantly failed in their Duty of Care towards the Complainant and contributed to, as well as, acerbating his work-related stress by not putting in place proper supports for him and failing to follow through on their commitments outlined in their Investigation Report.

4.       Therefore Chair, we respectfully request that you find in the Complainant’s favour and award him accordingly.

-          Company to accept bullying and harassment.

-          Company have recognised treatment – no follow up.

-          Sent home for total of 4 months.

BACKGROUND:

The Complainant started work with the Respondent on 11th April 2012 as a Customer Assistant and is currently employed to work 20 to 25 hours per week earning €12.71 per hour.   The Complainant’s contract of employment clearly references a grievance procedure and a staff handbook.   All staff are trained on the Grievance Policy and Dignity at Work Policy and the Respondent take any complaints of bullying and harassment very seriously. The Complainant is currently absent on sick leave.

BACKGROUND TO THE DISPUTE:

1.       The first grievance raised by the Complainant was on 26th June 2014 about the way his manager spoke to him and alleging that his manager poked him in the chest. An investigation meeting was held with the Complainant on 28th June 2014, the line manager was also interviewed and a findings meeting was held with the Complainant on 30th June 2014.   It was made clear to the Complainant that his manager had been made aware of the impact his management style was having on the Complainant, that the manager was being retrained on Dignity at Work and the Complainant was encouraged to approach any member of management if he did have any further issues with his manager that he was unable to resolve himself. The Complainant was also asked to acknowledge that any manager, including his manager, was entitled to give instructions and challenge working practices.

2.       Between February 2012 and august 2015 the Complainant was asked to attend meetings to discuss:

-his appearance

-his performance – speed and accuracy

-his leaving work early

-his uniform / safety shoes

-his holidays.

3.       The second grievance raised by the Complainant was on 9th November 2015 about being moved to another department as he felt that he was a better fit for his current department and thought it would affect his hours. An investigation meeting was held with the Complainant with a colleague accompanying him on 16th November 2015 and an outcome meeting the next day, where it was explained to the Complainant that it was felt that his excellent customer service skills would be very beneficial to the new department and confirming that he would stay on his current band of hours.

4.       On 26th February 2016 a meeting was held with the Complainant with regards to an incident in front of a customer where the customer heard him use bad language while in the company of her children. He said that this resulted from an argument with his manager.

5.       The most recent grievance on behalf of the Complainant was raised by his mother in a letter to the Respondent’s Head Office in March 2016 raising serious allegations on his behalf. The Complainant was invited to lodge a grievance if he did have any complaint and meetings were held on 21st March 28th April and 16th June 2016. The Complainant confirmed that his mother’s letter represented his grievance which was:

-          Poor treatment including losing hours and being sent home because of his beard.

-          Incident with his manager (as already considered in his June 2014 grievance) where it was alleged he was aggressive and poked him with his finger.

-          Deterioration in roster and being transferred to different jobs.

The investigation was obviously hampered because the Complainant’s manager no longer worked for the Respondent and therefore could not be interviewed. 3 other staff members were interviewed.

6.       The grievance concluded that

-          The Complainant’s beard did warrant management taking issue with his appearance and that they were entitled to discuss same with him but said that this ongoing issue was made more difficult because the store was unable to order a beard net and recommended that beard nets be made available.

-          There were no witnesses or evidence to any threatening behaviour against the Complainant by management.

-          Rosters are subject to variation especially as you change department but the investigation found no evidence from payroll records that the Complainant’s hours had been cut. It was recommended that any extra hours will be advertised on the store notice board so that he could apply for same if he wished.

-          The Complainant was not given sufficient training when he moved departments and committed to providing adequate support and training for the Complainant’s future.

7.       The investigation ended with the Regional Personnel Manager commenting that “I would like to conclude by apologising on behalf of the Company if you feel unsupported in work. I look forward to catching up with you when I’m in store and thank you for your contribution and valued customer service”. He was offered a right to appeal, which he exercised.

8.       The Appeal Officer made numerous attempts to meet with the Complainant and repeatedly rescheduled the appeal meeting.   Eventually, she wrote to him and said she assumed that he was not processing his appeal as he had not attended for the most recently scheduled meeting on 12th October 2016.   His Union responded, and a meeting was arranged. The Complainant in his appeal characterised being sent home for his appearance as a suspension, repeated his complaint about changes in hours and department and that he was being bullied by managers specifically by CN, that he was not supported and added in a complaint about holidays.

9.       The Appeal outcome was:

-          “I find that at no stage were you suspended.   You were sent home due to the fact that your beard was not neat and tidy in line with the expectation of the Company. I find that where a manager does not feel what is the expectation of the Company, that a colleague has come to work dressed for service then the appropriate action should be taken. In this instance, I find sending you home was the correct action to take” and repeated that beard nets should be available.

-          “In relation to you alleged reduction in hours, after your move from the counters to the shop-floor, your hours were not reduced and you were rostered in line with your contracted band. Colleague’s hours from time to time may flex within their band of hours based on the needs of the business”.

-          “When I investigated your allegation of being bullied by CN I was informed that he had completed one to one coaching with you on the shop floor on what your duties would be. He also requested that you do not deck stock on the floor, an instruction you ignored on numerous occasions. CN had reason to speak to you on a number of occasions in relation to the decking of stock and at no time did he feel that he was bullying you” but no witnesses were found to any improper treatment by management.

-          “From reviewing our file, I find that that there were records of meetings held in relation to booking holidays, from the notes you were asked to come back to your line manager with dates of your annual leave. As you did not come back to her, the team leader assigned you holidays based on dates available …. The Company Handbook states:

“In February or March, you will have a holiday review meeting with your manager to confirm that your holiday entitlement is fully booked for the forthcoming holiday year.

Three weeks holiday should be taken between 1st April and 31st October, with the remainder of your entitlement being taken between 1st November and 31st March. Colleagues should be aware of busy periods e.g. Christmas,

where holidays may not be authorised. Please ensure that you apply in advance to avoid disappointment”.

I find that it is your responsibility to book your holidays using the appropriate holiday booking form within the holiday booking window. It is important too that you have time away from work to relax and rest therefore if you have not booked the required amount of holidays, your manager will consult with you over dates that are still available during the holiday review meeting. As a last resort, your manager will allocate holidays to ensure you don’t miss out on your entitlement”.

10.   The appeal concluded “I have spoken to CN and he assures me that the management team are fully committed in supporting you at work. The Company recognises your awards for great service and we hope that you continue this going forward and thank you for your contribution to service. I have spoken to CN and at no stage has he told me that he dislikes you. CN’s main concern is to get you back to work and support you in any way he can.   I recommend that you should talk to your Personnel Manager for any further support required. I also recommend that you should plan and apply for your leave within the window provided”.

RESPONDENT POSITION:

The Company do consider that their approach to the Complainant’s grievances had been fair and reasonable and in line with our procedures and stand over the conclusions based on the evidence presented that there was no bullying involved.   We are keen to explore with the Complainant what he still considers are the impediments to his return to work and would make the following comments:

-          The Manager (KM) who was the focus of his grievance no longer works for the company.

-          The company maintains that it must retain the primacy of the manager in making the call on what is a neat and appropriate appearance including what would constitute a neat beard. We sell food including fresh food which is not in containers and must be vigilant about food safety. HACCP regulations dictate that appearance is a matter of food safety. However, in addition to the safety requirements, we must also be vigilant about our customers perception of how we approach food safety and so we are strict on our employee’s appearance so that our customers know what we are serious about, how we do our business and about their safety. We appreciate that it is very personal for any individual to be told that their appearance is not appropriate; however, our managers must be able to make that call. In this instance, beard nets were not available when this was an ongoing issue for the Complainant. However, beard nets are now available which should allow the Complainant to style his beard according to his own taste while still adhering to the appearance standards.

-          The Complainant must accept the right of a manager to give instructions. If he is unhappy with the instruction or how the instruction is given and is unable to resolve that issue directly with the manager, he has avenues open to him either through talking to another manager or raising the issue through the grievance process.

CONCLUSION:

To support the Complainant in his return to work, the Company proposes the following

-          Firstly, we would ask for the Complainant to attend the Company Doctor and would also welcome if he wishes to provide one, a report from the Complainant’s own Doctor on his fitness to work but more particularly on his fitness to engage in a return to work process and any recommendations they make regarding that return to work process.

-          If the Complainant is not yet fit to engage with the Company, we will agree a schedule of check-ins until the Complainant is ready to engage.

-          The Complainant was told about the new EAP service offered by the Respondent.   However, as it is a new service, he may not fully understand what this involves or may have some questions or concerns about making use of the service. The Company would welcome the opportunity to explain fully what is covered by the service and to give assurances as to the professionalism and confidentiality standards of the company providing these services. We feel that the EAP can offer an impartial and independent source of support for the Complainant in the return to work process. As part of the service, the employee is entitled to one on one counselling sessions with a qualified counsellor.

-          Subject to the medical advice and after the Complainant has consulted with the EAP, he will have a one to one meeting at the earliest suitable date with the store personnel manager to:

- talk through any concerns he has about returning to work.

- starting to discuss how the Complainant comes back to work considering any recommendations of his Doctor (staged basis or at his full hours, what role etc).

- Be briefed on any changes in the workplace.

- Arrange any required training and repeat and relevant training as regards the employee handbook including the processes involved in booking leave, the grievance procedure etc.

- Set a return to work date.

- If further meetings are required, they can be scheduled. This will help to build that relationship with the personnel manager so that the Complainant is aware of the support available when he returns to work.

The Company commits fully to the steps outlined to assist in return the Complainant to work and would ask that the recommendation arising from this hearing encourages the Complainant to engage in this return to work process.

The complaint as presented at hearing appears to be in two parts i.e. grievance from June 2014 and then a later set of grievances from 2016. In relation to the Grievance Outcome Report issued in July 2014 the Complainant’s representative clearly states, “One has to ask the question, why would the Complainant raise such a serious complaint, if he did not want anything done about it”. I now ask the question why have the Complainant and his representative waited for a period of 3 years and 4 months before bringing this point up if it was felt to be ‘such a serious complaint’. I don’t believe thisto be credible and will move onto the events of 2016.

The first mention of the Complainant’s beard appears to be the letter dated 28th November 2014 and the Complainant alleges that he was denied the opportunity to earn a living by management who suspended him without pay and did not bring him through the Disciplinary Procedure.

Section 13 of the Industrial Relations Act of 1969 states:

13. (1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this Section, a rights commissioner shall investigate any trade dispute referred to him under subjection (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.

Under the 2015 Workplace Relations Act these powers transferred to Adjudication Officers of the Workplace Relations Commission. As part of my investigation of this instant complaint I visited three of the Respondent’s stores.

There were a number of male employees wearing beards of various shapes and sizes, the only conclusion I can deduct from these observations is that local store managers have a degree of discretion in relation to what constitutes a neat and tidy beard. There were no male bearded employees wearing beard nets, some were working behind food counters.

To send the Complainant home for having a beard that, in the opinion of management, was untidy requires looking and raises the question “was this a punitive action”? Beard nets should have been made available, the fact they were not is not the responsibility of the Complainant, it is a management responsibility. In her letter dated 8th July 2016 the Regional Personnel Manager quite clearly states “From my investigation I do note that the company failed to provide you with the necessary beard net before moving you off the counter as it was not available to order”. I further note that in relation to being sent home over the beard the same letter states “I have also found that this issue should have been dealt with in a more timely manner and a resolution concluded”.

At hearing the Complainant suggested that management should display pictorially what is and what is not acceptable in relation to beards. Perhaps management should consider this?

In relation to one manager pushing his finger into the Complainant’s chest, the investigator notes that the investigation was not helped due to the fact that individuals including the alleged perpetrator had left the Respondent’s employment. The findings are therefore inconclusive and it is not for me to arrive at my own findings on this matter.

In relation to holidays there appears to be a policy and procedure that all employees are expected to follow when seeking holidays. This should be followed by all employees. Management informing employees when they should take holidays is not a breach of legislation and is commonplace in the manufacturing industry. Adherence to this policy is a reasonable expectation by management.

There appears to be a genuine effort by management to move things forward and have the Complainant return to work. These have been outlined in the Respondent submission under the heading of Conclusion, I will outline them once again:

To support the Complainant in his return to work, the Company proposes the following

-          Firstly, we would ask for the Complainant to attend the Company Doctor and would also welcome if he wishes to provide one, a report from the Complainant’s own Doctor on his fitness to work but more particularly on his fitness to engage in a return to work process and any recommendations they make regarding that return to work process.

-          If the Complainant is not yet fit to engage with the Company, we will agree a schedule of check-ins until the Complainant is ready to engage.

-          The Complainant was told about the new EAP service offered by the Respondent. However, as it is a new service, he may not fully understand what this involves or may have some questions or concerns about making use of the service. The Company would welcome the opportunity to explain fully what is covered by the service and to give assurances as to the professionalism and confidentiality standards of the company providing these services. We feel that the EAP can offer an impartial and independent source of support for the Complainant in the return to work process. As part of the service, the employee is entitled to one on one counselling sessions with a qualified counsellor.

-          Subject to the medical advice and after the Complainant has consulted with the EAP, he will have a one to one meeting at the earliest suitable date with the store personnel manager to:

- talk through any concerns he has about returning to work.

- starting to discuss how the Complainant comes back to work considering any recommendations of his Doctor (staged basis or at his full hours, what role etc).

- Be briefed on any changes in the workplace.

- Arrange any required training and repeat and relevant training as regards the employee handbook including the processes involved in booking leave, the grievance procedure etc.

- Set a return to work date.

- If further meetings are required, they can be scheduled. This will help to build that relationship with the personnel manager so that the Complainant is aware of the support available when he returns to work.

The Company commits fully to the steps outlined to assist in return the Complainant to work and would ask that the recommendation arising from this hearing encourages the Complainant to engage in this return to work process.

I would strongly urge the Complainant to accept this proposal from the Company.

I would recommend that the Complainant accepts management’s proposal in relation to a return to work.

In relation to the beard incident and being sent home I believe management could have managed this situation in a timelier manner and feel that sending him home without pay was a punitive action. Whilst it is not obvious how much the loss of earnings was I recommend a compensation payment to the Complainant of €2,500.

Any other complaints, for various reasons, are inconclusive for a few reasons and I recommend that the Complainant moves on from these.

In relation to holiday leave I recommend that the Complainant accepts the need for policy and procedure and adheres to this procedure.

I believe that the most important aspect of this conclusion / recommendation is that the Complainant puts this behind him and focusses on getting back to work and accepts that management in their proposal are genuinely trying to help him. This can be helped by the Complainant’s trade union.