Worker

Employer

Anonymised Parties

Cleaner

Cleaning Company

Representatives

SIPTU

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00022150-001

25/09/2018

The Worker referred her dispute to the WRC on 25th September 2018. She alleged that the conduct of an investigation into a complaint of bullying was not in line with best practice.

The Worker is claiming that the Employer is in breach of proper procedures in respect of an internal bullying investigation.

The complaint is on foot of a previous complaint heard on the 8th June 2018. The complaint concerned the failure of the Employer to properly investigate an allegation of bullying made by the Worker. The Worker claims that at this hearing an agreement was reached whereby the Employer would commence an investigation and the matter did not proceed any further. It was the understanding of the Worker that if there were any issues subsequently that she could return to the WRC.

Background as per June 2018 submission:

The Worker has been employed for over 18 years by the Employer on a part-time basis as a cleaning operative. The Worker submits that during that time she had an exemplary record and has conducted her duties in a diligent and professional manner.

The Worker submits that while at work on 18th February 2016 she suffered an epileptic seizure and was hospitalised as a result. She remained off sick until she was declared fit to resume her normal duties by her own medical practitioner. The Worker submits that the Employer required her attendance at their own occupational health specialist in advance of returning to duty. Occupational Health confirmed that the Worker was medically fit to resume work but advised that there should be a restriction on lone working or working at heights.

The Worker submits that, on returning to work she began to experience difficulties with her direct line manager, Ms K. These difficulties arose from the conduct of a series of what the Employee documentation describe as “Welfare Meetings”. The Worker claims that during the course of these meetings which were conducted in a store room the Worker was questioned in relation to her medication and eating habits. Comments were also passed by Ms K in relation to her physical appearance and perceived personality changes.

The Worker submits that on 4th November 2016 the Worker through her union lodged a grievance with management outlining her concerns that she was being harassed over her medical condition and that she was suffering from stress as a result. This was confirmed by her own doctor.

The grievance was heard by Mr A, Security Operations Manager who by way of letter dated 14th December 2016 did not uphold the grievance. Mr A outlined that his decision was based on the fact that Ms K was operating under instruction from the HR Department in relation to the conduct of these welfare meetings. The letter appears to be a template letter. The letter identified that the Worker could appeal the outcome to Mr G.

On 20th December 2016 SIPTU on behalf of the Worker emailed Mr G expressing extreme concerns in relating to the outcome of the grievance and suggested that the investigation should be widened to include the individual in HR who was authorising Ms K. Mr G did not respond. On 10th April 2017 SIPTU again emailed Mr G requesting a response. Mr G responded by email date 27th April 2017 in which he underpinned the approach taken by the management.

The Worker submits that in June 2017 she submitted a further complaint in which she identified a series of interactions with Ms K which she described as bullying. These incidents occurred between December 2016 and May 2017. Ms H was assigned by the Employer to investigate these complaints. An initial meeting was held with the Worker who was accompanied by SIPTU shop steward. A follow up meeting was arranged and the Worker sought to change same on the basis that her local shop steward had left the employment. In response Ms H sent a text message saying: “…you can have a work colleague with wmt it does not have to be SIPTU as the person is only a witness to the meeting it’s up to you to organise the meeting and I will then attend”.

On 3rd October 2017 SIPTU wrote to the HR Manager, Ms F setting out its contention that the Employer had failed in its statutory obligation to conduct a full investigation into the Worker’s complain of bullying and the matter would be referred to the Adjudication Service.

SIPTU argues that the Employer has a statutory obligation under the provisions of Section 8 of the Safety, Health and Welfare at Work Act 2005 to ensure safety, health and welfare of employees while at work. In respect of this case that responsibility is extended under Section 8(2)(b) to:

“managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health, or welfare at work of his or her employees at risk”.

This obligation in respect of workplace bullying is underpinned by the provisions of S.I. 17 of 2002. The manner in which the Worker’s complaints have been managed are an affront to that best practice model. In particular SIPTU requests to consider the following:

1.       The Worker has not been provided with a copy of company Bullying and harassment Policy.

2.       The Worker has not been advised as to whether or not her complaints of bullying are being addressed by an informal or formal process.

3.       No terms of reference were issued or agreed in respect of Ms H role or respondibilities in dealing with a bullying complaint or investigation.

4.       The Worker was advised that she did not require trade union representation and that she was responsible for organising the meetings.

5.       Correspondence from the Worker’s chosen representation has been ignored.

6.       We are not closer now to a resolution of the Worker’s complaint that we were in November 2016.

The Worker submits that her health has been so adversely affected by these issues that she has been unable to work.

SIPTU at the hearing on 8th June 2018 requested that the Adjudicator issues a decision that would require the Employer to accept the appointment of an external investigator to conduct a full and impartial investigation of the Worker’s complaints and to compensate the Worker for the unfair and unreasonable treatment to which she has been subjected.

The Worker argues that the Employer started an investigation shortly after the first WRC hearing, in July 2018 and issued a report on 22nd July which did not uphold the Worker’s complaint. The Worker appealed the outcome and received a letter dated 16th August 2018 which supported the investigative findings.

The Worker submits that on foot of this appeal she submitted a further complain to the WRC in respect of allegations of breach of procedure whereby the matter was not properly investigated and in particular that the Worker did not receive a proper appeal. The Worker submits that the fact that the Employer did not hear her submissions directly and only completed “a review of the investigation” without meeting the parties is not in accordance with proper procedures and best practice.

The Employer submits that the Worker raised a grievance through the grievance procedure, the matter was properly and thoroughly investigated, the outcome was issued and the Worker was afforded the right of appeal. At all times proper procedures were followed and no sustainable evidence was found to substantiate the claim.

The Employer submits that the Worker raised a grievance through the company grievance procedure on 18th June 2018 that her line manager Ms K was bullying her. On receipt of the complaint, the matter was investigated by Ms A, HR Advisor. Mr A contacted the Worker and her representative and arranged a mutually agreeable time for the investigation meeting. Ms A also contacted Ms K and sought a response in writing in relation to the complaint.

The Employer submits that the investigation meetings were held on 10th July 2018 with the Worker and her Manager Ms K, and a further meeting was held with the witness identified by the Worker, on 18th July 2018. Following the investigation meeting the investigator drafted an investigation report which was issued to the Worker and Mr L. HR Business Partner. The Worker’s union representative issued comments and on 16th August the comments were considered and a response issued which included the right to appeal. The matter was then referred to the WRC for Adjudication.

The Employer argues that the investigation was conducted in line with the policy as set out in the company Employee Handbook. The investigation was conducted by an appropriate person namely Ms A, HR Advisor. The investigation was conducted thoroughly, objectively, confidentially with due regard and respect for the parties involved. Statements from all parties were recorded in writing, and copies provided to the investigator. The investigator ascertained on the balance of probabilities, whether the complaints were well founded. The investigation was conducted without unreasonable delay. The matter was sent to the HR Business Partner for determination as to what action should be taken.

The Employer submits that at all times the process within the company handbook have been adhered to and the principles of fairness and objectivity as outlined in both the WRC Code of Practice on Grievance Procedures and as outlined in S.I. 146 of 2000 have been followed and applied.

The Employer argues that the Worker in this case has had her grievance fairly examined, and properly considered and the outcome of the investigation was that on the balance of probabilities the actions complained of could not be substantiated, or did not objectively be classed as bullying.

The Employer submits that the investigation and the grievance procedure applied by the Employer was fair, thorough and objective. The Worker was afforded all the correct procedures, and while the Employer does understand that the Worker may be unhappy with the outcome of the findings of the investigation, the Employer has conducted a fair investigation into the matter and must abide by findings of the investigator.

The matter before me arises from the Worker’s dissatisfaction with the execution of the investigation carried out by the Employer. I note that the Employer’s written Dignity at Work Policy contains a procedure for dealing with complaints of bullying and harassment.

The incidents that gave rise to the Worker’s grievance spanned from 2016 to 2018. The Worker initially raised a grievance on 4th November 2016 claiming that she was being harassed. The grievance was not upheld. In June 2017 the Worker submitted a further complaint in relation to incidents between December 2016 and May 2017. As the Worker was not satisfied with the Employer’s approach to her complaint she submitted a complaint to the WRC. A WRC hearing was held in June 2018 and an agreement was reached by the Parties that the Employer would commence an investigation and the matter did not proceed any further on that occasion.

Subsequently, Ms A, the Employer’s HR Advisor carried out an investigation in to the Worker’s complaint. Ms A forwarded her report to the Worker on 23rd July 2018 and invited the Worker to submit any comments she may have. Ms A forwarded her report to Mr L. the Employer’s HR Business Partner for review before a decision is made on next steps. I note that this is in line with the Employer’s Dealing with Bullying and Harassment policy.

I note that the Worker’s Union representative forwarded his comments on the report on 31st July 2018. Mr L, having reviewed the comments and the report informed the Worker on 16th August 2018 that he was satisfied that “a full and thorough investigation was conducted and a fair outcome was reached”. He further noted that he did not believe “that the Worker has been subjected to behaviour which could be categorised a s satisfying the definition of bullying”. The Worker was informed of the right to appeal this decision.

The Worker did not appeal the decision and submitted her claim to the WRC on 25th September 2018.

In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I do not recommend in favour of the Worker.

Bullying and harassment complaint-internal procedures not exhausted