Complainant

Respondent

Anonymised Parties

An Employee

Credit Union

Representatives

Marie Corcoran HR Consultancy and Mediation Services

JW O'Donovan Solicitors

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-00028131-001

01/05/2019

The Worker is an assistant manager of a Credit Union who had a grievance independently investigated by an external investigator. The Worker claims that the investigation was seriously flawed and is seeking a recommendation to reflect this assertion.

In February 2017 the worker lodged a formal complaint by way of grievance regarding the unacceptable behaviour of the then, but now, former CEO towards him. He lodged a separate though not unrelated complaint against the Board of Directors and their inappropriate involvement in matters of Employee Relations and the interference in the executive function of managing staff matters. There was a significant breach of confidentiality, in amongst other things, the leaking or careless disclosure of a potentially damaging adverse commentary on him by e -mail, which violated his right to privacy and good reputation. Investigations were commissioned, and an external investigator was appointed. After a significant delay, the employer responded to the conclusions of the investigation in a bizarre interpretation of the findings. A significant part of his grievances was upheld but no corrective measures were taken by the Board of the Credit Union. His grievance remains unresolved.

Due to the failure of the employer to address his concerns. He submits that his employer is in breach of its own Grievance and Disciplinary Procedures and no effort has been made to restore or reconcile fractured relationships.

He has sustained real and material damage to his health and welfare as a direct consequence of

the events of the last few years and he has of necessity frequently attended his medical practitioner due to the enormity of the stress he has endured and continues to endure. It is having an impact on his mental and physical health.

The Worker claims that there was no separation of roles between the Board and the investigator in that he submits: “There was no separation of positions as between respondents, commissioner

of investigation, selection of Investigator and decision makers. I contend that this action entered the realms of the Board acting as accused, judge, jury and executioner and I could have no faith that the process would be unbiased, fair and reasonable. My request to have nominated witnesses to corroborate my evidence during the investigative process was denied.”

The worker further submits that the investigator failed to get to the heart of the matter and that she did not also allow him interview appropriate relevant witnesses to assist in the establishment of evidence. The Worker also claimed that that the Employer did not abide by its own “post-grievance” procedures.

The Board of Directors set up a mediation process upon receipt of the Workers grievance against his CEO in February 2017. Mediation was an option also suggested by the Worker’s legal representative. One mediator was chosen by agreement from a list of accredited mediators, but this process proved to be unsuccessful. The grievance was then progressed to stage 6 of the grievance procedure where an independent investigator who was a practicing barrister, was appointed. The Terms of Reference were expressly agreed by the Worker’s legal representative and the Credit Union in June 2018. The Worker took a further grievance against the Board of Directors in November 2018 and this also went for investigation with the appointed investigator.

At all stages during the investigation, including during all meetings with the investigator, the worker was allowed legal representation and the Worker, through his solicitor, provided the investigator with all material in his possession relating to the issues.

Two separate comprehensive Investigation Reports were issued by the investigator on the 2nd of August 2018 together with a comprehensive index of all documentation and statements considered by her. The final reports issued by the investigator were only issued after the parties, including the Worker, were afforded an opportunity to comment on the draft Reports prepared by her. The Worker did comment through his solicitor.

Confidential “off the record” discussions took place between the parties after publication of the reports but concluded without resolution. The Board issued letters to the Worker in December 2018 stating that they considered his grievance to be concluded on the basis that that the conduct of the CEO was considered fair, reasonable and appropriate.

The Employer submits that at no time whatsoever did either the Worker or his legal representative object to the way the investigation was being conducted by the investigator, the draft Reports issued by her or indeed the final Reports issued on August 2nd, 2018. The Employer exhibited a letter of July 18th 2018 from the Worker’s legal representative where he states that the Worker retains faith in the investigation.

On the points that “the investigator failed to get to the heart of the issues” and also where the workers states that the Board acted as judge jury and executioner and “he could have no faith that the process would be unbiased, fair and reasonable, the Employer argues that never once did the Worker or his solicitor raise the points now being belatedly raised by the Worker.

The Employer further argued that the point that the Worker now raises about his request to have witnesses corroborate his evidence, was never raised by the Worker during the investigation.

The Employer rejects the argument that the Credit Union did not comply with the Post Investigation Section of the Grievance Procedure and submits that there was no cause for any consideration of any separate disciplinary action against the CEO.

Central to this dispute is the contention of the   Worker who maintains that his grievances were not properly addressed by management in that the independent investigation commissioned by them was so flawed in that it did not get to the heart of the matter and that, to quote from the Worker’s submission on the Complaint Form “…I could have no faith that the process would be unbiased, fair and reasonable.”

My primary role here, as was pointed out to the parties is not to re-open the investigation nor indeed to address the substantive issues that were investigated, but to assess instead as to whether the investigation commissioned by the Credit Union was fair, reasonable and independent. I received a copious amount material comprising copies of correspondence, terms of reference, Draft reports and final reports.

The first fundamental step in assessing the independence of a workplace investigation is appointing a third party who has no discernible connections with either of the parties involved. The appointment of a practicing barrister did not raise concerns on the Workers side, who was represented by a solicitor, prior to the process, during the process itself and after the process was completed. The Worker’s solicitor also agreed the Terms of Reference. I therefore conclude that the investigator acted independently in her role. It is quite clear that the Worker never raised an issue about the independence of the Investigator at this stage, nor at any other stage, save after receiving the conclusions of the report.

The Worker stated in his submission that the investigator did not allow him to call, nor did she consider it necessary to interview some relevant witnesses to assist in the establishment of evidence. This issue was raised after the conclusion of the reports. The Worker had every opportunity to raise such matters during the process and again, neither he nor his solicitor are on record of having done so.

The Worker’s argument that the investigator did not get to the heart of the matter might well be an opinion that he genuinely holds, but it is based on the unhappiness with the content of the conclusions, not on how the conclusions were arrived at. As late as July 18th, 2018, approximately two weeks before the report was published, the Worker expressed faith in the investigation process.

The Worker also has issues with the behaviour of the Employer regarding their failure to implement the conclusions of the report as per its “Post Investigation Procedure”. Therein lies a contradiction regarding the arguments of the worker in this dispute. An employee cannot reasonably rely on a case for implementing the conclusions of an investigation on the one hand, whilst on the other, arguing that the investigation was flawed. Notwithstanding this approach, the purpose of the investigation is encompassed in the following statement from its conclusion: “As the complaint does not set out specific allegations such as bullying, harassment or other specific definable wrongdoings, it is not the intention of this investigation report to state whether any particular “wrongdoing” has been committed.” It never was the intention from the outset that disciplinary proceedings could follow, nor can it be read otherwise in the findings of the investigator.The Worker’s assertion that some type of disciplinary action was warranted against an individual is not sustainable, given the parameters of the investigation.

Having considered all the circumstances of this dispute I find that the investigation of the workers grievance was independent and fair and that the grievances investigated can now be considered concluded with no further action required by either party.

Having considered all the circumstances of this dispute I find that the investigation of the workers grievance was independent and fair and that the grievances investigated can now be considered concluded with no further action required by either party.

Workplace Investigation