Worker

Respondent

Anonymised Parties

An Employee

A Health Service Provider

Representatives

Fórsa Trade Union

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-00022526-001

09/10/2018

This dispute relates to allegations that the employer failed to correctly undertake the investigation of a Dignity at work complaint in respect of grievances lodged by the worker. The worker’s dispute is that the employer breached its own Dignity at Work policy including with regards to the length of time it took for this complaint to be investigated by the respondent.

An adjudication hearing on this dispute was arranged for the 1st of August 2019. Both parties furnished written submissions at the adjudication hearing.  

The worker’s position is that, she made formal complaints against two named individuals in December 2014.  The worker states that she had first met with Mr. M of the employers Employee Relations Service on 23rd of January 2014 in respect of issues she was experiencing in her work environment specifically in relation to being subjected to a “severe management style and adverse working environment” which she stated was “creating a climate of fear and apprehension for her to the detriment of the performance of her duties”.

The worker submits that she fell ill in June 2014 due to the stressful working environment and she wrote to Ms. R HR Business manager on the 18th of July 2014 outlining that this was due to the disrespectful and undignified manner in which she was being treated as it was affecting her physical and mental well-being.

On 14 August 2014 the worker continued to engage with senior management and on 8th of September 2014 she confirmed the names of the two individuals whom she requested to participate in an informal voluntary mediation.  Following this request the worker was advised that the parties she had named had refused to take part in the mediation process.   On 24th of November 2014 the worker advised Mr. M of the employee relations service that she was invoking her right to lodge a complaint under the Dignity at work policy due to the fact that neither of the named individuals had wished to participate in the informal mediation.

On the 8th of December 2014 the worker wrote to Mr M confirming her intention to submit a complaint under the dignity at work policy. On 13th of January 2015 the worker again wrote to Mr M outlining her Dignity at work case.   The worker did not receive a copy of the terms of reference or names of investigator until the 27th of February 2015.   The Investigation did not take place until the 29th of April 2015.  

On 22nd of February 2016 the worker’s union wrote to the national director of human resources as the worker had received no further contact from the investigation team and on 26th of February 2016 the worker received a copy of the interview notes from the investigation meeting which had taken place on 29th of April 2015.  The fact that these minutes were not issued until 10 months after the interview contributed to them being inaccurate and there were considerable gaps in the information provided.   On the 4th of December 2017 the worker’s union again wrote to management informing them that this was the third anniversary of the lodging of the case and they were in breach of the employers own Dignity at work policy.

On the 5th of March 2018 the worker’s union again sought a response from management.   On 16th of March the worker’s union wrote to the national director of HR asking her to intervene as a matter of urgency as it was causing the worker undue stress and anxiety due to the fact that the complaint had been lodged over three years ago.

The worker was provided with a final investigation report on the 26th of March 2018 which she states had not taken into consideration her comments and observations submitted in relation to the draft report.

The complaints position is that the mishandling of this process denied her the right to principles of natural justice and fair procedures and to have the investigation conducted in line with the employers policies.   She stated that it took over 32 months to produce a draft report which is a clear breach of the dignity at work policy and the terms of reference agreed for the investigation which stated that it would be ‘conducted and concluded as expeditiously as possible and without inordinate delay’.

It is submitted that it is not acceptable for the employer to produce a final report on 26 March 2018 which relates to a complaint lodged on the 8th of December 2014. In addition, it is submitted that none of the additional comments and observations submitted by the worker in respect of the draft report produced in August 2017 were taken into consideration and it is not clear if they were even brought to the attention of the investigators.

It is also submitted that it is unfair that the two named individuals failed refused or neglected to engage in the process and that this should be seen as an admission of guilt. In addition, it is submitted that it is unfair that one of the named individuals was allowed to submit a late written statement without interview and that this cannot be in the same weight as evidence adduced during a live interview.   This individual failed to engage with the earlier stages of the process and her refusal to submit herself for interview by the investigators is unfair.   The worker was not at the time advised of the individuals non participation nor was she asked to submit names of witnesses who would have been able to corroborate her complaints.

It is submitted that from the outset this investigation was handled in a haphazard manner by both management and the investigators of the case and it took over three years for the final report to be issued which was resting with the commissioner of the investigation since 30 December 2017 and it wasn’t until the worker’s union sought the intervention of the National director of HR on 16 March 2018 that the final report issued. It is submitted that the process has been dragged out and flawed whilst allowing for the watering down of the worker’s complaints all of which caused the worker further stress and anxiety.   The worker stated that there were significant time delays in the investigative process and that the employer had refused to enter into mediation despite stating in its policies and procedures that it is willing to engage in that process.

Given the abject failures of management to ensure that the appropriate policies were adhered to and the fact that the worker was denied the fundamental principles of natural justice and fairness, the worker is seeking compensation as the adjudication officer would see fit.

The employer submits that they received a written complaint from the worker on 8 December 2014 and 13 January 2015.

Preliminary screening reports issued to the worker on the 7th of January 2015 and on the 23rd of January 2015. The names of proposed investigators along with draft terms of reference issued to the worker for her consideration on the 27th of February 2015 and confirmation of acceptance of both the terms of reference and investigators was received on the 13th of March 2015.   The investigation commenced on the 29th of April 2015.   On 10th of August 2017 the Investigators issued a preliminary investigative report to the parties for comments and observations. The final report of the investigation team issued to the Commissioner of the investigation on 30 December 2017, a copy of the report was issued to the worker the 26th of March 2018 and she was invited to submits comments by 9th of April 2018.  The employer following receipt of the workers comments then wrote to the worker on 13th of April 2018 confirming their acceptance of the findings of the investigation and confirming that the matter was concluded.

The employer refutes any suggestion that the investigation was conducted in a haphazard manner in breach of the dignity at work policy. They also reject the assertion that the worker was “not afforded the fundamental principles of natural justice”. The employer commissioned an independent investigation into the complaints of the worker and investigators were charged with the conduct of the investigation in consultation with the worker and her representatives. They presented preliminary conclusions based on the evidence gathered and invited the worker to provide additional information or comments.

The employer management assumed no role or part in the day to day running of the investigation which was conducted by the duly appointed team.   Any perceived involvement on the part of the employer in the process could lead to possible charge of interference in the ongoing investigation. The employer submits s that the investigation process and the setting of timeframes for the conduct of the investigation was not a matter at the discretion of the employer but was a matter for the independent investigation team.   The employer did not know the reason for the delay in the investigation of the worker’s complaints. The employer confirmed that the investigation was conducted by an internal investigation team. When the employer receives a copy of the final report from the investigation team, they issue the report which they did in this instance.

The worker at the hearing clarified that she was not seeing to overturn the investigation report but that she was seeking a recommendation in her favour given that the it took over three years before a final report was issued.    

The employer submits that the investigation was carried out by an internal team of investigators appointed by the employer with the approval of the worker. The employer states that it had no control over the timeframe of the investigation as the investigators were independent and that the employer could not interfere with the conduct of the investigation.  The employer also stated that it had not at any stage caused or sought to delay the publication of the investigation report. The employer also added that the workers claim under the IR act was unwarranted and unjustified in circumstances where the outcome of the investigation was that the employer had no case to answer.

I note the worker’s upset that the named respondents against whom she had raised a complaint against under the Dignity at Work policy, did not partake in that investigation.   I also note the worker’s submission that she was not asked to provide witness names to support her complaint and I also note the worker’s submission a person named in her complaint having refused to take part in the investigation was then permitted to provide a written statement in lieu of being interviewed by the investigators.

It is clear from the evidence adduced that the complaint was submitted on the 8th December 2014 and that an investigation commenced around 24th April 2015 but that a final report did not issue until the 26th March 2018.   In addition, I note the workers submissions that she did not receive a copy of the investigation meeting notes until some 10 months after that meeting had taken place.  

It is extraordinary, that while there may have been reasons which might have explained and/or justified such delays, the employer did not know of any reasons that either explained or justified these delays.

Conclusion

Having considered the submissions of both parties, and the arguments made I conclude that there was an inordinate delay in progressing the worker’s grievance and I fully acknowledge the stress and anxiety that the grievance process has caused to the worker.    Taking into consideration all of the above and due to the unique circumstances of the case I am of the view that the appropriate redress is an award of compensation and I recommend that the employer pay €4,000 to the worker by way of compensation.

In all of the circumstances of this dispute, I recommend that the employer pay the worker €4,000 in compensation.