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-00016156-001

06/12/2017

The complainant referred a dispute against the respondent to the Workplace relations Commission on 6th of December 2017.   The complainant referred the dispute in respect of Bullying and Harassment Procedures under Section 13 of the Industrial Relations Act 1969.

The complainant submits that

He has been employed by the respondent since 2008 as an Anti-Social Behaviour investigator,

In January 2016, he made a formal complaint about his line manager after numerous acts of inappropriate behaviour towards him,

On 23rd of December 2016 after the office closed for Christmas he was handed the investigators report which found numerous inappropriate behaviours towards the complainant by his line manager,

The report also contained a section about a counter complaint that was made by the line manager against the complainant this was the first time the complainant became aware of a counter complaint against him,

the complainant appealed against the report,

the appeal was dealt with by a barrister who found that the report should be set aside as the complainant’s rights had been breached, this report also found that the complainant was not afforded the same opportunities as his line manager and other members of staff by not being informed that he was being investigated,

the complainant submits that there was an inordinate delay in investigating his complaint over 330 days from the date of complaint to the date of final report,

the complainant went on sick leave due to stress in September 2017 after which his doctor recommended mediation which the respondent refused.

The respondent submits that

The complainant has been employed by the respondent since 2008 as an Anti-Social Behaviour Officer,

In January 2016 he made a formal complaint against his line manager following which HR met with the complainant on 28th of January 2016,

The complainants line manager was informed of this complaint in March 2016,

The complainant refused to engage in attempts to informally resolve his complaint and requested a formal investigation,

The respondent appointed an investigator and informed the complainant of this appointment on 1st of July 2016,

The investigation took place between July and December 2016 and concluded on 20th of December 2016, a copy of the investigators 43-page report was provided to the complainant on 23rd of December 2016,

the report made a finding of inappropriate behaviour by the complainant’s line manager on six occasions but that no bullying had taken place,

the complainant appealed the investigation process and Ms. M barrister at law was appointed to deal with the appeal, Ms. M issued her report into the matter on 11th of May 2016,

Ms. M concluded that the investigator went outside of his terms of reference by investigating a counter complaint against the complainant and found that complainants rights had been breached by such expansion of the terms of reference,

Ms. M upheld the complainants appeal on this matter and found that the findings made against the complainant in respect of the counter complaint should be set aside.

Both parties made written and verbal submissions at the hearing.

The complainant advised the hearing that he has been employed by the respondent since 2008 as an Anti-Social Behaviour investigator. He stated that in January 2016 he put in a formal complaint about his line manager Ms. J after numerous acts of inappropriate behaviour towards him.

The complainant told the hearing that he did not receive the outcome of the investigators report until the day the office closed for Christmas. The complainant told the hearing that the investigators report found numerous inappropriate behaviours towards the complainant by his line manager including a finding in respect of the fact that the complainants line manager told the complainant that he was being monitored by HR when he was not. The complainant told the hearing that the report found that the behaviour of the complainant’s line manager was totally unacceptable on a regular basis and that she was a poor line manager who should have been given training when it was suggested by her line manager.  It also established that HR failed to provide this training. The report established that the complainants line manager also falsified official documents about him.

The complainant told the hearing that the report also contained a section about a counter complaint that was made by the complainant’s line manager against him and about which he was never informed.    The complainant told the hearing that the first time he was aware that he had been investigated was when he received the investigators report.

The complainant told the hearing that he had appealed against the report in respect of the alleged counter complaint against him. He told the hearing that this appeal was carried out by a barrister at law, Ms. M who made a finding that the report of the counter complaint against him should be set aside as his rights had been breached in the investigation of the counter complaint. The complainant told the hearing that Ms. M in her findings had stated that he was not afforded the same opportunities as his line manager and other members of staff by not being informed that he was being investigated.

The complainant stated that he believes that he wasn’t treated equally by HR, that he has been discriminated against because he proceeded with his complaint and didn’t drop it when requested by HR.  The complainant told the hearing that the investigator himself stated that the complainant was left with a line manager who is clearly not a good manager.   In addition, he states that the investigator made a finding that the complainants line manager should have received training after a previous complaint was made about her.   The complainant advised the hearing that HR in their treatment of him had failed to act as they “guarantee” they will in their Dignity at Work Policy. He states that he wasn’t treated equally because they were trying to cover up their own deficiencies.

The complainant told the hearing that there was an inordinate delay by the respondent in investigating his complaint as it took over 200 days from when the date he made his complaint until he was interviewed, and a further 130 days until he received the investigators report.  

The respondent has submitted that the Dignity of Work policy does not provide a time limit for investigations. The respondent advised the hearing that it had sought to resolve the complaint informally initially in accordance with its procedures but stated that the complainant refused to engage in the informal process instead requesting that a formal investigation take place.   The respondent advised the hearing that it had then appointed an investigator and informed the complainant of this appointment on 1st of July 2016.   The respondent stated that the investigation took place between July and December 2016 and involved thirteen witnesses as well as the complainant and his supervisor.   The investigation concluded on 20th of December 2016 and a copy of the investigators 43-page report was provided to the complainant on 23rd of December 2016.   The respondent went on to state that the investigators report made a finding of inappropriate behaviour by the complainant’s line manager on six occasions but concluded that that no bullying had taken place.   The respondent told the hearing that the complainant appealed the investigation process and that the respondent had appointed Ms. M, barrister at law to deal with the appeal, Ms. M issued her report into the matter on 11th of May 2016.

The issue of the length of time taken to complete the investigation was raised by the complainant with the appeals officer Ms. M who acknowledged that workplace investigations invariably take longer than people think or intend. Ms. M concluded that the delay in this case did not in her view render the process unsound.

The respondent went on to state that the complainant had taken issue with the fact that the investigator had included in his investigation a counter complaint against the complainant made by the complainant’s line manager in the course of investigating the complainant’s complaint and on which a finding was made by the investigator in his report.     Ms. M in her appeal outcome letter concluded that the investigator went outside of his terms of reference by investigating a counter complaint against the complainant and found that complainant’s rights had been breached by such expansion of the terms of reference.   Ms. M upheld the complainant’s appeal on this matter and found that the findings made against the complainant in respect of the counter complaint should be set aside.

The complainant advised the hearing that following the outcome of the appeal process he had on the 11th of July 2017 made an official complaint about the head of HR for conducting an investigation into him behind his back.   He stated that the Director of Services for HR emailed him stating an investigator would be appointed but added that following this he received another email on the 24th of July 2017 stating that an investigator wasn’t going to be appointed and that the complaint would be dealt with informally.

The complainant told the hearing that this had an effect on his health and stated that he had to go on medication to control his high blood pressure and following this he had been absent form work on sick leave due to stress for a period of four weeks.  

The complainant told the hearing that his doctor had recommended that mediation would be required to resolve his work issues. The complainant told the hearing that he was during this time referred to the respondent’s occupational health doctor who recommended that a he attend a meeting with his HR manager or mediation to resolve his work issues.

The complainant told the hearing that the respondent had refused to engage in such mediation despite it being suggested as a solution by two doctors. It is submitted that the respondent declined to engage in mediation at that time as it stated that the investigation of his complaint and its appeal had been concluded.

I find that having read the submissions and listen to the various points that were made by the parties it is clear to me that the complainant does not consider the matter concluded or resolved.  It is also clear that the complainant continues to feel aggrieved arising from his treatment by the respondent after he lodged a complaint and due to the way, he was treated during the investigation.     The complainant raised a further complaint with HR arising from his treatment during the investigation process and the way in which the counter complaint against him was dealt with.    

While I am satisfied that the findings of the investigator in respect of the counter complaint were set aside following the appeal of the matter it is abundantly clear that the complainant does not consider that that is an end to the matter and he has advised the hearing that his treatment in respect of these matters had an effect on his health causing him to be absent from work due to stress.    

The complainant in this case has previously sought mediation and his doctor has recommended mediation. The respondent refused to engage in mediation stating that the reason for this is that the matter is concluded and closed.   It is clear however from the hearing of the matter that this matter is not closed as far as the complainant is concerned and that he has many concerns arising out of his treatment during the investigation of his complaint. Having regard to the complainant’s request for mediation of these matters and the respondent’s refusal of same I find that nothing has been done to address the ongoing relationship issues that appear to exist between the complainant and the respondent.     It is clear to me that that both parties need to make a commitment to resolving the outstanding issues that remain.      I am of the view that the parties would benefit from a mediation as a means to resolve outstanding issues.   Accordingly, I find, having given the issue a great deal of consideration, I recommend that

1.       In seeking to avoid further escalation and a timely resolution to outstanding issues the parties agree a mediation process to deal with outstanding issues in relation to matters that arose,

2.       That a suitable and agreed skilled Mediator is immediately engaged to attempt a comprehensive resolution of the issues, and

1. That this process should be completed within 30 days from the date of this recommendation.

I find, having given the issue a great deal of consideration, I recommend that

1.       In seeking to avoid further escalation and a timely resolution to outstanding issues the parties agree a mediation process to deal with outstanding issues in relation to matters that arose,

2.       That a suitable and agreed skilled Mediator is immediately engaged to attempt a comprehensive resolution of the issues, and

1. That this process should be completed within 30 days from the date of this recommendation.