Complainant

Respondent

Anonymised Parties

A Senior Operator

A Food Production Company

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-00022994-001

02/11/2018

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

CA-00022994-002

02/11/2018

The complainant commenced employment with the respondent on May 8th 2017, having been employed with them previously as an agency worker. On September 4th 2017, she achieved the role of senior operator, a skilled position occupied by around 70 of the 320 employees at the company’s facility in north Dublin.

An incident occurred on April 30th 2018, when the complainant and another senior operator had an argument about the work being done on production line 4 where they both worked. The other senior operator was working as a “cover” team leader at the time. The complainant said that her colleague shouted at her, was offensive and called her names. She said that she reported this to the supervisor, but he did nothing about it.

On May 4th, the complainant went on annual leave and she returned on May 18th. She asked her supervisor how the investigation into her complaint was progressing, but the supervisor said that he hadn’t been informed about any complaint. In his submission, Mr Dorda said that the complainant felt “broken down” by this. On May 21st 2018, the complainant left work early and the following day, she sent in a medical certificate from her doctor, who confirmed that she was suffering from depression and that she would be absent until June 5th. On May 29th, the complainant asked for a meeting with the HR department and a meeting with the HR manager was set up for June 6th. At this point, the supervisor that the complainant had told about the argument on April 4th had left the company.   At the meeting, the HR manager informed the complainant that she had no knowledge of a complaint about an incident on April 4th and she asked her to submit the complaint to her.  

The complainant submitted a new medical cert until June 19th 2018. At the hearing, the HR manager said that she was reluctant to start an investigation while the complainant was out sick suffering from depression and she did not discuss the issue at the meeting on June 6th. A letter was submitted in evidence which shows that the HR team expected the complainant to be back at work on June 20th and that they committed to dealing with her complaint then.   The complainant returned to work on June 25th.

When she was back at work for about a week, the complainant sent a mail to the HR assistant to ask her about the progress of her complaint. The HR assistant said that she had not yet received the complaint and the complainant sent the details in an e mail following day. In her mail she said that on April 30th, when she was working on the production line, her colleague started shouting at her about the fact that she changed certain labels. She said that this colleague used obscene language and that in general, she is arrogant or, she ignores her. She said that this person waits for her to make a mistake, and that when the complainant stops the line, she starts it up again without finding out why it has been stopped in the first place. The complainant said that it was stressful working with this colleague and that, in her view, her conduct amounted to bullying and abuse of her position at a team leader. The complainant said that this is a long-term problem and that it has caused her to have a nervous breakdown, and that she takes medication to reduce her stress levels. She said that the problem started at the beginning of the year when the previous team leader was transferred.

On July 16th, an operator was appointed to investigate the complainant’s allegations. He interviewed the complainant and her “protagonist” on the production line. On July 23rd, the investigator held an “outcome” meeting with the complainant, by which point he had only interviewed the complainant and the person with whom she had the altercation and two others who were nearby at the time.   The complainant said that at this meeting, she requested that another named person be interviewed.

On July 27th, the complainant sent a letter to the company in which she complained about the delay concluding the investigation. However, on the same day, the company wrote to the complainant explaining the delay and it appears that this correspondence got crossed in transit. Following this, the investigator interviewed eight other employees who worked on or near production line 4. On August 13th, he issued these findings:

“It is clear that an altercation took place on Line 4 on 30th April 2018. It appears that there has been conflict between both (the complainant) and (name of the other senior operator) in the past. It also appears that (the complainant) has had conflict with other colleagues in the past.

“However, what is quite clear is that the communications between both colleagues has broken down and this is not an optimal way of working.”

Having concluded that “what was lacking in this situation was clear communication,” the investigator recommended that training take place to avoid a repeat of what happened on April 30th. Planning for the training commenced immediately, and on September 17th, the HR manager hosted a communications workshop.   The complainant and her colleague on line 4 attended, along with five other employees. From the company’s perspective, this training is the conclusion of this grievance, but the complainant’s view is that the investigation was not properly carried out and that its findings are flawed.

Since the outcome of the investigation, the complainant and her colleague have been assigned to different production lines. The colleague has been appointed to a role as a team leader. At the hearing, the complainant said that she doesn’t have any direct contact with her, apart from seeing her occasionally in the factory, but she said that they don’t speak to each other.

The Delay Commencing the Investigation

Setting out the complainant’s position regarding the investigation, Mr Dorda said that there was an unreasonable delay addressing the complaint. The complainant insists that she sent a written complaint to the HR department on May 3rd 2018, but that the investigation did not start until July 16th. It is the union’s case that a delay “has the effect of diminishing the reliability of evidence,” and that a protracted delay without any justification undermines the fairness of the procedure.

No Terms of Reference

Terms of reference were not drawn up in advance of the investigation. If such terms of reference had been available, Mr Dorda submitted that the overall process would have been more transparent. He also proposed that a guideline on fair procedures could have been provided with the terms of reference.

No Opportunity to Comment on the Report or on Witness Statements

Mr Dorda said that the complainant never had an opportunity to comment on the first version of the report and she was not given copies of witness statements to review.   When the first version of the report was issued, the investigator had not interviewed a critical witness nominated by the complainant. MR Dorda said that as a result of the way in which the investigation was conducted, a new investigator should have been appointed. Finally, on this point, the complainant was not given an opportunity to comment on the findings of the final report before it was published.

Relevance and Credibility of the Witness Statements

The complainant has a concern about some of the witness statements. In relation to one witness, a supervisor, she said that the person wasn’t in the area where the altercation happened on April 30th. This witness said that she spoke to another supervisor on the day in question, but it has emerged that this other supervisor wasn’t at work on April 30th. The union’s view is that this person’s evidence led the investigator to the conclusion that the complainant had been in conflict with other colleagues in the past. The complainant said that the direct evidence of a witness nominated by the complainant has been ignored. Finally, the complainant said that some of the witnesses were not actually witnesses to the incident, and instead, they provided testimony about their views of the complainant’s character, which, Mr Dorda claims, is highly prejudicial.

On behalf of the respondent, the HR manager who attended the hearing acknowledged that it appears that the complainant gave a written statement to a supervisor in early May 2018, but the HR department didn’t have sight of this until July 4th, by which time the supervisor had left the company. At the hearing, the HR manager said that she phoned this supervisor after he left and asked him about the complaint, but he said that he didn’t remember receiving it. She denied that the complainant’s concerns went unnoticed, as is evidenced by the scope of the investigation that was carried out and the time taken to process the allegations.

The HR manager’s position is that the findings of the investigation were fair and factual, although she accepted that the process was not perfect. Terms of reference should have been drawn up, but this was overlooked because the complainant was keen to have her complaint dealt with.

The investigator met the complainant on July 16th, and on July 20th, he met the colleague with whom she had the altercation. On July 23rd, he met the complainant to give her the outcome of his investigation. At the hearing of this complaint, the HR manager said that this meeting should not have taken place because, at that stage, only four people had been interviewed.   The HR manager told the investigator that he must speak to more people before reaching a conclusion. A letter was submitted in evidence which shows that, on July 27th, the HR manager wrote to the complainant to let her know that further interviews were taking place and that the investigation would take some time to conclude.

In his submission at the hearing, Mr Dorda said that a supervisor who was interviewed as part of the investigation wasn’t near the incident when it happened on April 30th. He also said that it has been established that the other supervisor referred to in this witness’s evidence wasn’t at work on the day. At the hearing, the HR manager confirmed that the supervisor named in this witness’s evidence was not at work on April 30th.   She said that the witness made a mistake about the day, but that she had observed the complainant and her colleague having arguments on previous occasions and she reported this on a different day.

The respondent’s position is that the investigation that was carried out between July and September 2018 found no evidence that the complainant had been bullied by her colleague. The HR manager said that, while the investigation did not start on time and while the process was not perfect, it was fair and in line with the company’s procedures. To get a full picture of what happened, the investigator interviewed colleagues who were mentioned by both parties. What emerged was a pattern of conflict between the complainant and several colleagues. At the hearing, the HR manager said that while this might be unpalatable for the complainant, “it is the honesty of the situation.”

The HR manager said that the complainant had every opportunity to express her concerns. When the investigation was finished, she was represented by her union official at a meeting with the HR department on September 12th 2018. A communications workshop was held on September 17th and both the complainant and her colleague participated fully in that exercise. The problem persists that the outcome from the investigation is not the one that the complainant is seeking. The company’s position is that there are no grounds for payment of compensation.

In her initial complaint to the HR department, the complainant said,

“This situation started with the transfer of the previous team leader at the start of the year, this is when (name of colleague’s) arrogant manner was directed towards me.”

It is apparent therefore that, from the complainant’s perspective, she wasn’t getting on with her colleague from January to the end of April 2018, a period of about 16 weeks.   The incident that occurred on April 30th was the first time that she complained about her colleague, describing what she said was her arrogant manner and her use of bad language.   Apart from this one incident, there is no evidence that the complainant reported any other unacceptable behaviour on the part of her colleague.

My role is not to re-open the investigation or to 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 (HSA) Code of Practice on the Prevention and Resolution of Bullying at Work. The HSA code defines workplace bullying as,

“…repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work."

In the High Court in March 2014, Mr Justice Kearns found against the claimant in the case of Catherine Glynn v the Minister for Justice Equality and Law Reform and the Attorney General, [2014] 25, ELR 236. Ms Glynn had claimed that she suffered from a psychiatric injury as a result of bullying in her workplace. Considering the HSA definition of bullying, Justice Kearns said,

“It follows that the first question that must be asked in every bullying case is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.”

Generally, bullying has the objective of isolating a victim and, in my experience, it rarely takes place in the open where people can observe the bully’s undermining and humiliating behaviour. It is my view that the conduct described by the complainant that occurred on April 30th was an ill-tempered encounter and cannot meet the test of “calibrated inappropriateness and repetition” described by Mr Justice Kearns above. It is my view that what occurred was not bullying.

I have considered how this complaint was investigated by the company, and the complainant’s views about the various issues that occurred; the delayed investigation, the premature outcome on July 23rd and the evidence of one particular witness.   An investigation into a complaint of bullying is not the same a scientific enquiry; there may be stops and starts, people go out sick or on holidays and sometimes, witnesses take sides.   I find that no detriment arises from not drawing up terms of reference; the matter was not complicated and the complainant had the support of her union at all times. I am satisfied that the reason that this investigation was delayed was because the complainant was out sick. The premature conclusion was rectified and, apart from the protagonists, 10 people were interviewed, one or more of whom were nominated by the complainant. The evidence of the witness that the complainant objected to was not a critical factor in the investigation’s findings.

In summary, the investigation into the complainant’s allegation of bullying was not perfect, but it is settled law that what is most important in workplace investigations is fairness. In respect of this matter, I am satisfied that the complainant was treated fairly.  

At the hearing, it was apparent that the complainant is suffering from stress, but this incident happened almost one year ago, and she said that she now has very little contact with the person she complained about. I find it difficult to understand the connection between this incident and the stress that the complainant is suffering from at the moment, particularly as both employees attended a communications workshop together on September 17th 2018. At the end of the hearing, we discussed the possibility of providing some support to the complainant to address this.

I consider that this matter has been appropriately dealt with by the respondent. To bring it to a close for the complainant, I recommend that, on an exceptional basis and for the leave year of 2019 only, the complainant should be permitted to take three additional days’ paid leave.

Bullying, investigation