FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Geraghty Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Recommendation No.: ADJ-00011904.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On 24 August 2018 the Adjudication Officer issued the following Recommendation:-
- “In relation to the bullying and harassment I believe the complaint is well found and recommend the payment of compensation to the Complainant of €3,000 in full and final settlement of this complaint.”.
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 2 October 2018 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 11 January 2019.
DECISION:
Background
The Worker was a Customer Assistant in the Company. He is also a member of the Auxiliary Fire Service. The Company has a specific policy to facilitate employees who engage in voluntary, emergency work. The Worker lodged a grievance under the Company’s Grievance Procedure about what he alleged was bullying and harassment by his manager. The grievance covered a complaint about his wages while on emergency call out. This latter aspect was resolved. The conclusion of the Regional Manager, who conducted the grievance investigation, was that the manager’s behaviour was ‘inappropriate’ but that it did not constitute bullying and harassment. A recommendation was also made regarding the manning of the department. The Worker appealed this outcome. The outcome of the appeal upheld the judgement of ‘inappropriate’ comments by the manager and that this did not constitute bullying. It confirmed a breach of the Company’s Dignity at Work policy and advised that the manager had been re-trained in this policy. The Worker did not return to work and referred the matter to the Workplace Relations Commission under the Industrial Relations Act 1969.
The Adjudication Officer, noting the efforts of the Company to facilitate the Worker’s return to work, urged him to work with management to achieve this. On the question of possible bullying, the Adjudication Officer held that the complaint was well founded and awarded compensation to the Worker of €3,000.
The Company appealed this Recommendation.
Worker’s arguments
1 The Company was aware of the Worker’s battle with mental health issues. He was delighted when his employer facilitated him with release for emergency duty as a Firefighter. Unfortunately, he was then subjected to a barrage of verbal abuse by his manager and he became medically unfit for work, as a result.
2 The conduct of the investigation under the Grievance Procedure was flawed as the Investigation Manager failed to interview witnesses put forward by the Worker. This is a clear breach of fair procedures, a failure in the employer’s duty of care to the Worker and it contributed to exacerbating the Worker’s work-related stress.
3 The Appeal investigation interviewed the four witnesses put forward by the Worker, confirmed that they had not been interviewed in the original investigation but, despite statements from the four witnesses confirming unacceptable behaviour by the manager, the outcome upheld the finding of the original investigation, which is another breach of fair procedures and further supports the view that management failed systematically in their duty of care.
4 The manager’s behaviour was clearly bullying and harassment, as defined in the Company’s Dignity at Work policy.
Company’s arguments
1.The Company’s approach to the Worker’s grievance has been fair and reasonable. The conclusion of the Company’s procedures that bullying had not occurred is is reasonable, in light of the evidence.
2 The Adjudication Officer erred in finding that there was bullying of the Worker. Apart from the manifest unfairness to the person so accused, who was not a party to the adjudication hearing, the role of the Adjudication Officer is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures(S.I. 146/2000) not to form an opinion as to whetheror not the Company was correct objectively in its conclusions. It would be appreciated for the sake of the line manager, who is very distressed by the findings, that it is made clear that the finding that he engaged in bullying is rescinded fully.
3 The Worker resigned prior to the WRC hearing and is employed elsewhere. He did not await the outcome nor engage with his return to workplan nor engage with the workload review in his Department nor seek to agree a practical methodology to indicate his need to leave the workplace to respond to fire calls. This indicates that he had no genuine intent to engage in dispute resolution in order to return to work. The adjudication Recommendation was concerned with resolving a disputewithinthe workplace and should, therefore, be set aside.
4 The Company does not accept that it should be expected to make reparation to the Worker when he would not engage with the Company nor even await the adjudication outcome.
5 The witnesses referred to by the Worker were interviewed in the appeal process. The Appeal Officer confirmed that the original investigator had not interviewed them because the line manager had admitted that he did possibly say what they alleged and he confirmed that they did not state anything different ‘from what was already documented’.
Recommendation
The Labour Court is not in a position to carry out its own investigations into allegations of bullying and harassment. The Court will always be mindful, in reaching its conclusions, of the rights of all parties to the natural justice protection of ‘audi alteram partem’ i.e. the right to be heard before a judgement can be made. The Court cannot say whether or not the behaviour of the manager goes beyond ‘inappropriate’. All the Court can do is note that two separate investigations took place and that both reached the same conclusion that the manager’s ‘inappropriate’ behaviour fell short of bullying and harassment. The Court does not propose to substitute its opinion for that reached by the people who conducted the investigations.
With regard to the process used in this case, it is difficult to imagine any circumstances where a failure to interview witnesses can be justified when the witnesses concerned are willing to give direct evidence regarding the very actions that have given rise to the grievance. It can be argued that this failure of process in the original investigation was rectified, at least partially, in the appeal process in this case. However, it is the view of the Court that the failure in this process fell short of what ought to be expected of a good employer and, therefore, the process failed to address properly the grievance of the Worker.
The Court recommends that the Company pay the Worker a sum of €1,000 compensation in full and final settlement of this matter.
The Adjudication Officer’s recommendation is varied accordingly.
Signed on behalf of the Labour Court
Tom Geraghty
TH______________________
21 January 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.