ADJ-00020126

Complainant

Respondent

Anonymised Parties

A Supervisor

A Transport Company

Representatives

ShonaghByrneSIPTU

Act

Dispute Reference No.

Date of Receipt

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

CA-00026614-001

27/02/2019

The complainant made an internal complaint to the respondent under its Bullying and Harassment policy on July 1^st, 2018 against four co-workers. It concerns an allegation that she had been bullied over a period between October 2016 and May 2018 by a group of four management staff.

A formal investigation conducted by an external investigator followed and concluded in December 2018. The complainant was given the opportunity to comment on the outcome and she did so on January 22nd. She stated that she did not accept the investigator’s findings.

The investigator did not uphold the allegation of bullying as she found it did not meet the criteria set out in the respondent’s policy, but she did find that there were general breaches of the complainant’s right to dignity at work.

The complainant wrote raising objections to the investigation on February 13^th and specifically that the respondent had conducted four separate investigations against the subjects of her internal grievance, with separate terms of reference, rather than one.

Her argument was that there was a connection between the actions of those she complained about.

In addition, the complainant says that the respondent (in this case, her employer) also had a case to answer in a corporate sense for how she had been treated.

The experience has had a serious, adverse effect on the complainant’s health resulting in an absence from work with ‘work related stress’.

She seeks an acknowledgement from the respondent that she has been treated unfairly and also application of the sick pay scheme as it applies to work related illness, and payment of her medical expenses.

The respondent describes the complaint as ‘an abuse of process’ in that the matter has already come before the WRC in January 2018 and a decision has issued; (ADJ 11751).

This resulted in a settlement in respect of a disciplinary sanction and having accepted that sanction the complainant cannot now complain about the actions and the same facts which gave rise to it.

This process related to incidents alleged against the complainant on October 1^st, 2016 and March 5^th 2017.

The complaints referred to in the complainant’s submission were made after this date.

The complaints were based on the same facts as had given rise to the process referred to.

Essentially, she was seeking to represent the normal process of supervision of her work as ‘bullying and harassment’. The managers against whom she complained were those who had applied the disciplinary action against her.

She is therefore seeking to have the respondents in her internal complaint disciplined for their actions, which she says were ‘co-ordinated’.

Despite this the respondent engaged an external investigator and had the complaints investigated.

The complaints of bullying and harassment were not upheld.

I address first the respondent’s contention that this complaint represents an ‘abuse of process’.

That argument is based on the actions of the complainant in seeking to have the same issues ‘litigated’ again, despite having been the subject of a previous intervention by the WRC.

While the respondent’s frustration at the prolongation of the matter may be understandable, and it sees the complainant having ‘several bites of the cherry’ this complaint relates strictly to the conduct of the investigation, and this is how I will interpret it.

The respondent, having agreed to that investigation cannot now seek to place its actions outside the sphere of review on the basis of a previous WRC intervention, although it is clearly linked to the same set of facts.

It had no choice but to agree to hold the investigation, and it acted correctly in doing so, even if, on the face of it that complaint (of bullying and harassment in July 2018) in relation essentially to the disciplinary processes was, to put it at its mildest, stretching the internal procedures to the limit.

If there is an abuse of process (and I reach no conclusion on that point) it is an abuse of the respondent’s own processes, rather than those of the WRC.

However, the complainant’s criticism of the respondent’s decision to hold four separate investigations against each person complained of is without merit. Once respondents have been identified in such a complaint, their alleged conduct must be investigated on the merits of the complaint as it is made against them.

Workplace investigations, while legally controversial in recent times must first establish the facts against each respondent and then reach such conclusions as are required by the Terms of Reference in respect of breach of the Dignity at Work policy.

In her letter of complaint of July 1^st, 2018, the complainant makes reference to her feeling that there was ‘a co-ordinated approach to make me unhappy in my position, until I resign from the company’.

She also stated that she felt that she was ‘the obvious target of bullying and harassment’. And yet, the complaint letter against the four individual respondents contained no evidence of such co-ordination or collusion.

The concept of corporate bullying or bullying by a group (‘mobbing’ as the complainant referred to it,) has been recognised by the courts, and of course, it would be open to an investigator if requested to do so, or the respondent employer having received the reports of the investigator, to reach a conclusion on that point.

This is a matter that should be addressed at the outset in the terms of reference of the investigator. In its evidence the respondent said that the complainant did not revert to it in respect of any amendment to the Terms of Reference.

While it is not the sole responsibility of a complainant to do so that was the time to build in any further instructions to the investigator as to the scope of her investigation. The respondent stated that if the complainant had wanted a fifth process, i.e. some overarching review of all the evidence to test whether there had been co-ordination she should have said so.

That was the point at which the obligation to have the Terms of Reference revised arose.

The complainant said she did refer to it, but this did not result in a change in the Terms of Reference.

However, while this may have been a more difficult challenge, it was not insuperable and, more importantly from the point of view of the complainant’s case it does not avoid the necessity to conduct the individual investigations which is what the complainant has objected to.

It is in theory possible that isolated acts which by themselves did not meet the standard of proof (as the investigator concluded) might, when viewed overall have done so. (On a general reading of the investigator’s reports I do not think they would have).

In addition, she objected to the actual conclusions reached by the investigator. The submission to the hearing defined her complaint as an ‘appeal of the investigation outcomes’.

In a WRC hearing the oversight which will be exercised by an Adjudicator will be primarily procedural for the obvious reason that it would be very difficult in most cases to replicate the type of investigation already conducted at the level of the workplace.

In the absence of some procedural irregularity, or some demonstrably perverse conclusions an Adjudicator will rarely intervene in respect of the outcome.

The complainant’s disagreement with the findings of the investigator (which makes up much of her appeal letter) repeats her view about what conclusions the investigator ought to have reached, or questions she ought to have asked but it is the point of such exercises to get an independent view and these are matters for the judgement of the investigator.

The investigator’s reports were submitted and on a general review they appear to have been conducted to a fair and professional standard, and she made some helpful recommendations to assist the restoration of relationships between the parties.

She was at the considerable disadvantage that when she was commissioned in July 2018 a number of the complaints in the cases dated back to events which took place in October 2016 (two respondents), November 2016. In all cases there were more recent complaints also.

The complainant only made her complaint on July 1^st, 2018. While the principle of the nexus between complaints is well established especially in equality cases and allows complainants to bridge quite lengthy timeframes, an onus should fall on complainants to explain why a complaint has not been made within a reasonable timeframe in the absence of such continuity.

The complainant made submissions about her fears that she has been or might again be the subject of unfair targeting by the respondent.

This is obviously something which can also easily be addressed. The complainant remains answerable to normal performance and conduct monitoring, but it ought to be relatively simple to put her mind at ease in respect of these fears through some sensitive counselling process.

In respect of her claim for financial compensation this appears to be a claim for the application to her of the scheme which applies to employees injured in the course of their work.

She also makes a claim for payment of her medical expenses.

There is no justification for either of these claims.

I do not uphold complaint CA-00025514-001 and I recommend that the complainant accept the outcome of the investigation reports and put the matter behind her.

Specicically, I recommend that the complainant accept the recommendations of the investigator to engage in a suitable facilitated and informal resolution process with the respondents in the investigation and this is a good way forward for all concerned.

I also recommend that, in consultation with her union, the company should agree a sensitive, confidential counselling process to allay the complainant’s fears about her perceived vulnerability to future investigation or disciplinary processes.

Investigations, discipline, mobbing.