Complainant

Respondent

Anonymised Parties

A retail worker

A retail chain.

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-00022272-001

01/10/2018

The Complainant has been employed by the Respondent as a Sales Advisor since 30th May 1988. She is currently employed in one of the Respondent’s stores in Dublin City Centre.

This complaint was received by the Workplace Relations Commission on 01/10/2018.

On the 20th February 2018, the Complainant lodged a grievance with regards an incident that had occurred on the 8th February 2018 on the shop floor with a member of management.   This letter was addressed to Mr.TK, HR Manager, Respondent Organisation, Dublin and detailed the incident that had occurred on the 8th February 2018, the cover letter also outlined that it “brought to mind previous incidents” that our member had been the victim of by this member of management.

Ms. B, lodged a grievance concurrently to the Complainant’s Grievance.   Following an investigation, our member was found to have “no case to answer”, however in the Grievance lodged against the Complainant, Ms B confirmed that she said to another member of staff, “Cause you know how I love to annoy the Complainant”.   Further to this, our member feels that her work ethic and approach to her work was inappropriately discussed with other members of staff.

The Company assigned Ms. LB, HR Manager, to investigate THE Complainant’s grievance and the Complainant was written to on the 16th March 2018, a month after she had lodged her grievance.

In a letter sent to the Company on the 16th March, the Complainant outlined a number of incidents that had occurred since 2014 and the previous Formal Grievance that she had raised against the same member of management.

On the 17th April 2018, Ms. LB interviewed the Claimant, as part of her investigation into the allegations set out in the letter of the 20th February.    

This meeting was attended by Mandate Trade Union Official, Mr G and a company scribe.

At the meeting on the 17th April 2018, the Complainant requested that supplementary information, outlined in her letter of the 16th March 2018, regarding previous incidents, be taken into account by Ms. LB as part of her investigation and considered as part of the Grievance.     This request was initially denied, but in a letter on the 30th April, Ms. LB stated that she would happily take this information into account and suggested a date for a second Interview.

A further Investigation meeting was scheduled for the 8th May 2018.   Again, this was attended by a scribe and Mr. G as Union Official.

At the Grievance Investigation Meeting, the Complainant requested that 10 days Sick Leave she had taken, at her Doctor’s recommendation, following the incident in February and her medical expenses be reimbursed.   This was also the subject of correspondence between the Investigation Manager, Ms. LB and the Union Official, Mr. G.   At the end of 2018, our member had gone 4 days unpaid, due in part to using up Sick Leave around the incident that was the subject of her Grievance.

Our member also requested that the Company make arrangements so that she could attend private counselling, as the public waiting list was very long.

On the 24th May 2018, Ms. LB issued her Findings, detailing the Investigation Process and noting that “having reviewed CCTV footage I have not found evidence to support the allegation that Ms. B shouted in a vicious, aggressive and loud voice at the Complainant on 8 February 2018. There is no case to answer.”   However, Ms LB did find there was “a number of comments made by Ms. B that were inappropriate and unbecoming of a manager, which she has admitted making… I would confirm on this matter, there is a case to answer by Ms. B”.

Subsequently the Complainant appealed the outcome of her grievance, as per the agreed procedure.

This Appeal was heard by Ms CB, HR Manager, on the 2nd August 2018.

Ms. CB, HR Manager, issued her Outcome on the 20th August 2018, upholding the decision of Ms.LB, while noting that “whilst it is not appropriate to discuss the outcome of the case against Ms. B, I can confirm that it has been addressed”.   This concluded the internal Respondent Organisation’s Procedure.

The Case was referred to the Workplace Relations Commission on the 1st October 2018 and acknowledgement of the referral was received on the 3rd October 2018.

Union Argument:

The Complainant has outlined throughout this Grievance Process, the deep impact her treatment by the member of the Respondent’s Management, named in her grievance has had on her; health, time at work and family life.   While the Company did complete an investigation, it is our opinion that enough weight has not been given to the aforementioned impact and the findings of the Complainant’s Grievance fail to atone for the matter raised.   As was accepted by the Company, the Complainant entered evidence regarding her treatment from 2014 up to 2018.   It is our member’s view that she has been the victim of a sustained campaign of bullying and harassment and that she was not afforded a duty of care by the Company and while she was eventually offered a number for a UK based Counselling Service, no such specific service exists for ROI Staff.

The Complainant made a reasonable request that the 10 days sick leave that she took at the recommendation of her GP, be expunged from her absences and that the Company make a contribution towards the medical expenses she has incurred, due to the behaviour of a Member of Management.   The Complainant has said through the course of the grievance that she just wishes to attend work without any incident and not to be fearful of any further potential incidents.   This is the kind of workplace that the Respondent Organisation aspire to provide on Page 4 of their own Handbook, “Our aim is to provide employment in pleasant surroundings”.

As a result of the incident on the shop floor and the comments made by a Member of Management, our member has suffered substantially.   This can be noted in the medical cost, with the Complainant losing weight, going from a size 12 to a size 8 due to stress and anxiety.     In addition, this has put her at a significant financial loss, due to her needing to attend Medical Practitioners on her own time.   This is a cost, not just financially incurred, but also serves to cost her time outside of work, that could be spent with family, friends or engaging in other pursuits.   The Complainant has been on a prescription of anti-depressant medication since the incident in February 2018.

The Respondent Organisation operate an Absence Policy that triggers an investigation if a member of staff is absent on 8 occasions in a 26-week period.     Therefore, the Complainant could have been subject to a Disciplinary, including the absence that she took at her GP’s advice, following the incident on the shop floor on the 8th February 2018.

Conclusion:

The case on behalf of our member, sets out a number of incidents that have occurred in her place of employment since 2014, while the initial Grievance relates to an incident on the shop floor on the 8th February 2018.   The Complainant seeks that the Company acknowledge that for her, the Respondent organisation has not been a “pleasant” place to work and that she receives an apology for the way she has been treated. That they expunge the Sick Leave related to this incident and reimburse her for the 4 days she was unpaid in 2018, reimburse her for medical expenses incurred and that she receives an apology from the Company for the treatment she has received.

Background

The Complainant has been employed by the Respondent as a Sales Advisor since 30th May 1988. She is currently employed in one of the Respondent’s stores in Dublin City Centre.

Previous complaint investigated in relation to anincident on 31st March 2014

On the 1st May 2014, the Complainant wrote to the HR Manager informing him of an incident that took place between a Section Manager and herself on the 31st March 2014 in a Dublin store in which the Complainant alleged unacceptable treatment.

On the 14th May 2014, the HR Manager met with the Complainant and her chosen accompanying person to seek clarity on the issues raised in her letter and to discuss how this matter might be resolved. It was agreed with the Complainant that she would attend a mediated meeting between both parties. It was also agreed that as the alleged perpetrator was absent from work at that time the mediated meeting would be scheduled to a mutually convenient date and time for both parties.

On the 22nd July 2014, a mediated meeting took place between both parties (with representatives) but a mediated resolution was not reached.

On the 30th August 2014, the Complainant wrote to the HR Manager informing him of a formal complaint against the alleged perpetrator because of the incident on the 31st March 2014. Her complaint related to her treatment by the alleged perpetrator during an incident on 31 March 2014 relating to cash handling.

On the 8th September 2014, another HR Manager wrote to the Complainant informing her that she had been appointed to hear her grievance. A meeting was scheduled for the 15th September 2014.

The appointed HR Manager interviewed the Complainant, the alleged perpetrator and 11 witnesses from the 15th September until the 16th October 2014.

The appointed HR Manager concluded her grievance report on the 22nd October 2014. The appointed HR Manager found that the alleged perpetrator’s gesturing and language used towards the Complainant on 31 March 2014 were both inappropriate and unbecoming of a manager. However, she noted the alleged perpetrator’s evidence of a verbal apology. Three findings were made including that the alleged perpetrator is retrained on Managing Dignity at Work policy.

The Complainant then wrote to the Head of HR appealing the outcome of this grievance report on the basis that the findings did not reflect the severity of the incident and the affect it has had on her personally and that the issues raised do not appear to have been dealt with adequately or taken seriously by the Company.

On the 25th November 2014, the Complainant wrote to the Head of HR International informing him of the incident of the 31st March 2014.

On the 2nd December 2014, the Complainant wrote to the ROI Head of Region, informing him of her letter to the Head of HR International.

The Complainant’s letter to the Regional Manager had been passed to the Head of HR on the 12th December for her to respond to same. The Head of HR wrote a second letter to the Complainant, dated 12th December 2014.

Further to some correspondence regarding the scheduling of a suitable date for an appeal hearing, it was ultimately scheduled for 15th January 2015.

The Head of HR heard the Complainant’s appeal on the 15th January 2015.

On February 2nd, 2015, the Head of HR wrote to the appropriate Mandate Official informing him of the appeal of grievance outcome. The appeal was not upheld, and the Head of HR confirmed that all three of the Investigating HR Manager’s recommendations had been acted upon/were being actioned.

To summarise, the investigation into the Complainant’s grievance had been extremely lengthy, primarily due to the alleged perpetrator being hospitalised in April and not returning to work until June. On her return to work an attempt was made to resolve the matter via a mediated meeting in July. However, as a resolution was not reached at that meeting a full investigation commenced immediately thereafter. There were also 11 other witnesses to be interviewed and the Company did this as speedily as would allow bearing in mind summer holidays, shift patterns etc.

The Company treated the matter very seriously and carried out an extensive investigation. The Complainant received an apology, the Company issued recommendations which were acted upon to ensure there was never a repeat of this incident i.e.

1.       A full review of the relevant policies relating to cash handling with all Section Managers, red circled Advisors and any other cash handlers is carried out and all are refreshed as a matter of urgency so that all are clear.

2.       The alleged perpetrator is retrained on the Managing Dignity at Work Policy by her line Manager so that a repeat of this incident does not occur.

3.       The store management team needs to ensure that adequate resources are in place to cover any security needs to protect those moving cash.

The present complaint relates to the Complainant’s grievance against Ms B regarding the incident on 8 February 2018 (almost 4 years later).

On the 10th February 2018, Ms B, Section Manger wrote to the HR Manager informing him that she was taking a formal grievance against the Complainant due to an incident that occurred on the 8th February 2018.

On the 16th February 2018, the HR Manager wrote to the Complainant to inform her that Ms B had lodged a grievance against her, he also enclosed a copy of Ms B’s grievance letter for her perusal.

On the 20th February 2018, the Complainant wrote to the HR Manager informing him of an incident that occurred with Ms B in the Mary Street store on the 8th February 2018. The Complainant also enclosed notes outlining the details of the incident.

The HR Manager had been appointed as the investigating manager into Ms B’s grievance against the Complainant therefore it was felt he could not investigate her grievance against Ms B. the HR Manager completed his investigation on 24 May 2018. He did not uphold Ms B’s grievance against the Complainant. Ms LB, HR Manager was appointed to investigate the Complainant’s grievance and confirmed same in writing to her on the 4th April, a meeting was scheduled for the 17th April 2018.

Ms LB interviewed the Complainant on the 17th April 2018.

The Complainant wrote to Ms LB on the 25th April 2018, formally requesting that the Company investigate all incidents from 2014 to date.

Ms LB responded to the Complainant on the 30th April 2018 indicating that supplementary information may be included, thus expanding the remit of the investigation to include other alleged incidents from 2014-2018 and scheduled a further meeting on the 8th May 2018.

The Complainant wrote to Ms LB on the 30th April 2018, referring to their meeting on the 17th April and outlining that she expects the outcome for Ms LB to “reflect the severity of her ongoing campaign of harassment against me”.

Ms LB interviewed the Complainant again, Ms B and 13 witnesses on the 8th May up to the 16th May 2018.

Ms LB completed her investigation and provided the Complainant with her report on the 24th May 2018. Her findings were as follows:

1.       Having considered all of the points raised by you, having also considered the statements of all named witnesses in this matter and having reviewed CCTV footage I have not found evidence to support the allegation that Ms B shouted in a vicious, aggressive and loud voice at the Complainant on 8 February 2018. There is no case to answer.

2.       There were a number of comments made by Ms B that were both inappropriate and unbecoming of a manager, which she has admitted making. There comments were “Stop acting out” and “I just love annoying M”. Ms B said that these comments were meant to be sarcastic and not in a serious manner. I would confirm on this matter there is a case to answer by Ms B.”

Appropriate action was taken in respect of finding number 2.

Mr G, Mandate Official wrote to Ms LB on behalf of the Complainant on the 30th May 2018, regarding some outstanding matters and this was responded to on 11 June 2018.

On the 7th June 2018, the Complainant appealed Ms LB’s outcome of the grievance hearing to the Head of HR.

The Complainant wrote to the Head of HR on the 20th June 2018 outlining the grounds for her appeal.

Ms CB, HR Manager was nominated to hear the Complainant’s appeal of the outcome of the grievance hearing. Ms CB wrote to the Complainant informing her the appeal hearing was scheduled for the 4th July 2018.

Mr G was unable to attend and following a telephone conversation between Ms CB and Mr G the appeal hearing was rescheduled to the 18th July 2018.

The Complainant was unable to attend and following another telephone conversation between Ms CB and Mr G the appeal hearing was further rescheduled to the 2nd August 2018, this was confirmed in writing to Mr G on the 17th July 2018.

Ms CB met with the Complainant and Mr G on the 2nd August 2018 to hear the appeal of the outcome of the grievance.

Ms CB confirmed the outcome of the appeal hearing in writing to the Complainant on the 20th August 2018. The appeal was not upheld.

Conclusion

In conclusion the Company took the Complainant’s grievance very seriously, carried out a lengthy and thorough investigation, ensured findings and recommendations were carried out and conducted an internal appeal, the outcome of which was confirmed in writing to the Complainant and her representative.

It is not accurate to say that the matter has not been dealt with adequately, in Ms LB’s letter of 24th May 2018 she has confirmed that there was in fact a case to answer by Ms B. Also, in Ms CB’s letter of 20th August 2018 she reaffirmed that Ms LB advised that there was not enough evidence to support her allegations on all points except one which Ms LB confirmed there was a case to answer by Ms B. Ms CB also informed the Complainant that whilst it was not appropriate to discuss the outcome of the case against Ms B, she confirmed that it has been addressed.

The Company would also confirm that Ms B has been dealt with in line with the Company’s procedures. The Complainant may have wanted Ms B heavily disciplined, however at the conclusion of the grievance investigation the evidence did not support that, neither from the Complainant’s evidence or the evidence of the witnesses.

The Company has fully complied with its Grievance procedure and Dignity at Work policy and the principles contained in the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000.

The Company must have due regard to the rights of both the Complainant and Ms B in addressing the grievances which have been raised. The Company implemented the correct procedures in a fair and reasonable way, as a prudent and concerned employer, in reaching a conclusion as to the outcome of this grievance.

In considering this complaint I am not going to focus on the incident from 2014, it is in the past and it’s best that it be left there.

A significant point in this complaint is that Ms B, a member of the Respondent’s management group wrote to the HR Manager on 10th February quoting “I am writing this letter to inform you that I wish to take a formal grievance against (the Complainant was named) due to an incident that occurred on Thursday morning 8th February in the Children’s department of the store”. This was followed by a detailed account of the incident.

In turn this was followed by a letter dated 16th February 2018 from the HR Manager to the Complainant informing her that Ms B had lodged a formal grievance against her, this letter then went on to inform the Complainant that he proposed to meet with her on Tuesday 27th February 2018.

I presume that the Complainant received this letter on either the 19th or 20th February 2018.

On the 20th February 2018 the Complainant wrote to the HR Manager, this letter includes the following:

“Sorry to bother you but I have had yet another incident with Ms. B, enclosed are the details of the latest one which happened on 8th February’18.

I bring this to your attention as this incident greatly upset me as you will see from the enclosed. Worse, it brought to mind the similar previous incidents.

When is all this going to cease”?

Attached to this letter is a summary of the incident from the 8th February 2018. On the second page of this summary, half way down the page, the Complainant states:

“By now was shuddering anxiety and my stomach was in knots and I was sick. My heart was pounding was pounding with fear. C came towards me and said something (I don’t remember what) but I told C what had happened with Ms B. C said “Oh I remember what she did to you with the trays (before today).

It was at this point that all Ms. B’s behaviour over the years came flooding back to me and I just burst into floods of tears” ………...

This incident on 8th February was not the subject of a complaint until 12 days later. If the Complainant was in such a state, why did she wait for 12 days before reporting same?

During this 12 day period Ms. B lodged a complaint against the Complaint that the Complainant was notified of in or around the 19th or 20th of February.

Would the Complainant have lodged a complaint to management if Ms. B had not made a complaint against her?

On receipt of the complaint the Respondent management conducted a full and thorough investigation that included the interviewing of 13 witnesses. An investigation report was put together. The findings of this investigation were:

1.       “Having considered all of the points raised by you, having also considered the statements of all named witnesses in this matter and having reviewed CCTV footage I have not found evidence to support the allegation that Ms B shouted in a vicious, aggressive and loud voice at the Complainant on 8th February 2018. There is no case to answer.

2.       There were a number of comments made by Ms B that were both inappropriate and unbecoming of a manager, which she has admitted making. These comments were “Stop acting out” and “I just love annoying (the Complainant was named)”. Ms B said that these comments were meant to be sarcastic and not in a serious manner. I would confirm on this matter there is a case to answer by Ms B.”

I note that management took appropriate action in relation to point 2, what this action may have been does not form part of this complaint.

Policies and Procedures.

The Respondent company has policies and procedures covering dignity at work and has a comprehensive grievance procedure. I note that a guide covering these issues has been produced and two trade unions have collaborated with management on the content of these.

Having read through these procedures I am happy that they have been utilised properly in addressing the complaints from the two employees.

Redress.

The representative for the complainant has included the following passage in his submission:

“The Complainant seeks that the Company acknowledge that for her, the Respondent organisation has not been a “pleasant” place to work and that she receives an apology for the way she has been treated. That they expunge the Sick Leave related to this incident and reimburse her for the 4 days she was unpaid in 2018, reimburse her for medical expenses incurred and that she receives an apology from the Company for the treatment she has received”

Conclusion.

Having considered this case in depth I cannot fault management for the way they have handled matters, they have followed procedures agreed with employee representatives and in line with the Code of Practice developed by the Labour Relations Commission and referred to as S.I. No.146 / 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 2000.

It is for this reason I am unable to issue a recommendation in favour of the Complainant.

As I am unable to issue a recommendation in favour of the Complainant I must declare that the complaint is not well founded.

Industrial Relations Issue.