Worker

Employer

Anonymised Parties

A Barber

A Barber Shop

Representatives

Dundon Callanan, Solicitors

Dermot Coughlan Mid-West HR Solutions Network

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-00028847-001

05/06/2019

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

CA-00028847-002

05/06/2019

The Worker started her employment with the Employer on 1st September 2008. She referred her claims to the WRC on 5th June 2019 alleging that the investigation in relation to her grievance was carried out in an unfair manner (CA-00028847-001) and that a disciplinary warning issued to her is entirely unjustified (CA-00028847-002).

The Worker submits as follows: The Worker claims that she has been subject to a campaign of bullying and harassment by a Director and Manager of the Employer, Ms E, and also involving other employees.

The Worker submits that there was a meeting held with Ms E on 25th January 2019 during which two matters were discussed.

1.       Alleged retention of tips by Ms E. The Worker claims that Ms E has been mistaken from time to time in the past regarding tips.

2.       Alleged bullying. Ms E informed the Worker that it had been brought to her attention that the Worker had told other staff members that she was bullying the Worker.

The Employer concluded the meeting stating that she refutes both allegations and she was disappointed that the Worker had made such serious allegations against her.

On 31st January 2019, the Worker received a letter from the Employer with attached “Report of the meeting”. The cover letter outlined clearly that the meeting was not a disciplinary meeting and was not part of the Employer’s grievance procedure.

On 5th March 2019, the Worker received another letter from the Employer. The letter was a follow up to the two incidents on 26th and 27th February 2019 when the Worker let a customer in before the normal starting time. The letter informed the Worker that she was issued with a verbal warning.

On 13th April 2019 the Worker was called to a meeting attended by her co-workers and Ms E. She received a letter signed by four staff members. The letter outlined the co-workers’ frustration in respect of their relationship with the Worker and the relationship between the Worker and Ms E.

The Worker raised a formal grievance dated 1st May 2019. The Worker listed some 29 incidents when she felt she was being bullied and / or harassed.

On 9th May 2019, the Worker received a letter from Ms E. The letter invited her to a meeting on 20th May 2019. The meeting was attended by Ms E and the Employer’s HR Advisor, Mr A. The Worker attended together with her solicitor. The investigation was being carried out in an unfair manner and, in particular:

·         The Worker objected to Ms E sitting directly across the table from her while the investigator questioned her about her grievance. Ms E refused to leave the room.

·         The Worker is not a native English speaker and there was no interpreter made available to her.

·         Mr A was not independent as he was the Employer’s HR advisor, who acted on behalf of the Employer for a number of years, he drafted the letters issued to the Worker and he represented the Employer at the WRC hearing.

The investigator said that there was no way to move forward with the investigation and suggested proceeding to an industrial relations complaint in respect of the matters arising under the grievance.

Following the referral of the complaints to the WRC, on 27th July 2019, the Worker received a letter outlining most recent events and the Employer’s concerns in respect of her performance. She was informed that an investigation would be conducted in that regard. Until the date of the adjudication hearing no action has been taken.

The Worker submits that the relationship can be worked on and a mediation would be a possibility. She is seeking that the grievance process is conducted by an independent person with an assistance of interpreter.

The Employer submits as follows: The Worker is employed by the Employer as a barber since September 2008 and until recently the employee/employer relationship was good. Of late however the relationship has become somewhat fraught to the extent that the actions of the Worker are now impacting on the entire workings of the company as the Worker is gradually becoming estranged from all of the other employees and indeed her employer. Issues pertaining to the Worker's competencies and skills as well as trust have also arisen since the Worker filed her complaint which will be referred to later in this submission.

The Employer outlined in detail its response to each of the matters raised in the Worker’s grievance letter of 1st May 2019.

•        The Employer noted that it attempted to conduct a full investigation into the allegations made in the Worker's letter. The Employer had commenced a process of mediation and the ultimate aim was to attempt to mediate a resolution.

Several of the matters under investigation involved or concerned the owner of the business and as a consequence the Employer requested its HR advisor, Mr A, to lead this investigation and to attempt to mediate a resolution.

•        To seek clarity and get a fuller picture the investigator, Mr A, decided to have a meeting with the Worker and her chosen adviser and the owner of the business. He had decided that it was important that the Worker and the owner would meet face to face to discuss the matters. This would facilitate explanations or elaborations to be furnished by both sides.

•        The list of complaints/allegations was long but such lists lack context and he was of the view that it was important to get the views of both parties rather than ferrying between both sides seeking clarifications. It was clearly explained that this was an information gathering exercise and the employee was entitled to be fully represented.

•        Having clearly outlined the process, the Worker and her representative were invited to attend an initial meeting. At the outset the Worker indicated through her representative that she was not happy to have the meeting with the Employer present. It was explained that having both parties present would assist with the speed with which the investigation could proceed. It would also afford the Worker and her representative to directly question the Employer regarding any and all matters. Following consultation with her advisor the Worker decided not to engage with the investigation. Her representative indicated that his client was not happy to proceed with any investigation which involved the owner being present. The Worker refused to engage with this process of mediation. The matter was referred to the WRC for adjudication by the Worker.

•        It is very important to note that subsequently during a discussion with the Employer the Worker indicated that she had no problem with the investigation proceeding with the Employer present but that she would not proceed as the investigator was a customer of the business.

•        This direct contradiction of the stated position of the Worker calls into question the reliability of the Worker. The Employer has met with other staff members in an attempt to get their view on the allegations made against them personally. The Employer would further like to record that the long list of complaints was not submitted until May 1st 2019. This is worth noting for a number of reasons. Of the 29 allegations 19 of them are claimed to have occurred in 2018 or have no date attached to them. Clearly the delay in making such complaints some of which are serious in nature renders it difficult for an employer to investigate due to the significant time lapse. It must also be recorded that a number of the allegations were addressed when they were brought to the attention of the Employer and appropriate remedial action taken. It is difficult therefore to see why these are being presented again as if they had not been dealt with when brought to the attention of the Employer. This, in the view of the Employer is an attempt to discredit the Employer and also to damage the reputation of the Employer. It is no coincidence that the complaints/allegations have been submitted subsequent to the Employer issuing the Worker with a written warning regarding her behaviour and actions. The Employer submits that where complaints were brought to its attention that the matters were dealt with in a timely manner. It must also be noted that where appropriate the Employer took appropriate actions. The Worker made a number of complaints to the Employer in January 2019. The Employer instituted an investigation into the complaints and allegations. As part of this investigation the Employer met with the Worker on January 25th 2019. The concerns were investigated and addressed by the Employer. To then receive such a long litany of complaints and allegations as those contained in the letter dated May 1st 2019 was most surprising.

•        Since receiving the list, the Employer has investigated each of them. It is unfortunate that the Worker decided not to engage with the investigation. Of the complaints/allegations that were subsequently investigated, the Employer has come to the view that there is no basis to the complaints submitted. It is the view of the Employer that they were submitted as a distraction or counter action to the allegations which the company had levelled against the Worker.

•        In addition to the long list of complaints and allegations, which the Worker has referred to the Commission for adjudication, the Worker also references three items of correspondence. Two of these are between the Employer and the Worker and the other document is a letter from members of the staff to the management of the Employer detailing concerns they have as to the behaviour and actions of the Worker.

•        The Employer submits that the letter of 31st January 2019 from the Employer to the Worker is a cover letter to a report of a meeting that the Employer had with the Worker regarding issue that she raised with the Employer. The Worker would appear not to recognise the extremely serious allegations that she made against the owner. The retention of tips by an employer from an employee attacks the fundamental bond of trust between the employer and employee. In addition to not recognising the seriousness of the accusation the Worker's response to the owner in relation to the matter was at best contemptible. The owner has worked for 20 years in the industry and has developed and very strong reputation within the industry. She has also developed an excellent reputation as an exemplary employer within an industry that has suffered from its fair share of complaints regarding employment practices. In her 20 years she has never been accused by an employee of retaining tips. She was appalled and shocked at the allegation. She immediately reviewed the CCTV. This was shown to the Worker. It clearly shows the customer paying for his haircut by card and the time is recorded. The receipt was then shown to the Worker showing that the receipt coincided with the time of payment by the customer and no tip was added to the payment. The CCTV also showed that he did not leave any cash as a tip. The CCTV also showed that it would have been impossible for the Worker to hear, as she claimed, the customer stating that he was leaving a tip for her. When all of this evidence was presented to the Worker her reaction was a shrug of the shoulders and the comment "that could be any receipt". She then turned on her heels and headed to the staff room. She never even attempted to apologise or accept that the allegation she made was false. This very serious accusation by the Worker against her employer in many other establishments would have resulted in the dismissal of the employee - rightly or wrongly. When taken in conjunction with the reaction of the Worker when the owner produced evidence showing clearly that no tip was left would most certainly have resulted in dismissal in other establishments and industries. Of note is the closing paragraph of the letter, which invited the Worker to revert to the Employer if she was unhappy with the documents. The Worker never raised these documents again with the Employer until she submitted her request to the WRC requesting adjudication. The Employer is surprised therefore that this correspondence is the subject of the adjudication. It is the view of the Employer that this methodology is an abuse of the functions of the Commission.

•        (Letter of March 5th 2019 from the Employer to the Worker which relates to the matter of the verbal warning issued to the Worker and will be addressed in detail in CA 00028847-002, below).

Conclusion

•        The Worker has made several serious allegations and complaints against her Employer. She has also made several allegations regarding the actions of her fellow employees. To the best of its ability the Employer has investigated these claims and allegations and is satisfied that they are made without foundation. The timing of the complaints coinciding as they did with the issuing of a second warning letter to the Worker is to say the least a strange coincidence. The lengthy delay in the tendering of many of the complaints is also unacceptable to the Employer.

•        The Employer prides itself on operating an intercultural business where all staff are treated with dignity and respect. Key to maintaining this culture is for staff to operate within the guidelines and to bring issues of concern to the attention of the Employer at the earliest possible time.

•        It is totally unacceptable to have incidents, which occurred in excess of twelve months ago to be tabled before an Adjudicating Officer of the WRC without them ever being brought to the attention of the Employer. It is the view of the company that all of allegations and claims lack merit and due to their timing border on being vexatious. The Employer has shown enormous restraint towards the Worker and has treated her fairly and indeed generously and leniently. It is clear however that this is not reciprocated. The Worker has shown contempt and total disregard for her Employer. A fact that is evidenced through her actions such as her allegation regarding the retention of tips by her Employer and the total disregard she shows for the lawful instructions of her Employer.

In respect of the matter of the letter signed by other staff members, the Employer submits that Ms E was approached by a staff member saying that they have an issue with the Worker. She was asked to arrange a meeting. Ms E was handed a copy of the letter by one of the staff. She attended the meeting but ultimately, the matter was handled by the staff members, not the Employer. It was argued that the letter was read out to the Worker and she “had her say”, but the Employer did not take any steps in that regard. Ms E claims that there was no formal complaint against the Worker made.

Ms F, an employee confirmed at the hearing that she wrote the letter on behalf of the staff members. She noted that she had formally complained about the Worker to the Employer.

Statement of Ms E

Ms E, Director, read out a short statement. She stated that she came in to the hearing in a spirit of reconciliation. She claimed that she had always tried to accommodate the Worker. She noted that it is a very upsetting and stressful time for her and she feels that she cannot give directions or make comments, she is afraid to approach the Worker.

I have considered the submissions of both parties.

The Worker has a long list of grievances and complaints mainly in respect of her relationship with Ms E but also with her work colleagues. She raised a formal grievance on 1st May 2019. The Employer insists that this has been dealt with to the best of its ability. In this referral, the Worker outlined a number of procedural issues in relation to the Employer’s handling of her grievance and in relation to the investigation process.

The Employer’s grievance procedure states that it is its policy to give employees:

·         A fair hearing concerning work-related problems and opinions they may wish to raise.

·         The right to appeal.

·         The right to be accompanied by a fellow employee / union representative when appealing against the decision.

I note that in the letter acknowledging the Worker’s grievance Ms E clearly states that “I will have to investigate the matters fully” and “I will be accompanied by [Mr A], HR consultant to the Company”.

The Worker wrote back to the Employer stating that it is not appropriate for Ms E to investigate the matters as most of the complaints are against her. The Worker indicated that she would not attend the investigation on that basis.

Ms E replied noting that “It appears that you may have not understood the Company’s position on this matter. As we are a small company we do not have a range of senior staff capable of undertaking an investigation of this nature. The Company therefore has engaged the services of an experiences Human Resources Consultant to lead the investigation.”

The Worker wrote again to the Employer noting that she would like to meet with the investigator alone and without Ms E being present so that she can discuss her complaint freely.

Ms E replied on 22nd May 2019 stating that the Employer has “…no control over how the consultant will wish to conduct the investigation”.

There was no dispute that Ms E attended the investigation meeting along with Mr A. It was also confirmed at the hearing that all correspondence to the Worker which was signed by Ms E was written by Mr A. In fact, the letter of 22nd May 2019 was forwarded directly from Mr A’s email address to the Worker’s email. It was also confirmed that Mr A was advising the Employer since the establishment of the business and, in this particular case, he stepped in and advised the Employer since around the end of February 2019.

I find it not surprising that, in the circumstances, the Worker did not feel comfortable with proceeding with the investigation. I don’t accept that the intention and “the ultimate aim was to attempt to mediate a resolution” between the parties. I find that the Worker raised a plethora of allegations against Ms E and her co-workers and these required an independent investigation.

In respect of the letter written by staff members outlining their issues with the Worker, I find it astonishing that a responsible employer, having been informed of such issues, would allow a situation to occur whereby a worker is ultimately ambushed by co-workers at a meeting with full knowledge and approval of the employer. I note that Ms F stated at the hearing that she had made a formal complaint to the Employer in respect of the relationship with the Worker. It is therefore even more startling that the Employer chose this course of action.

Having considered the submissions of both parties, I conclude that there were significant procedural shortcomings thorough the grievance process and I fully acknowledge the stress and anxiety that the grievance process has caused to the Worker.

I recommend that the parties agree, as soon as possible, clear terms of reference for a third-party investigation, and that the Worker be consulted on these and who will be appointed as investigator.

I am further of the view that the parties would be best served if the Worker’s grievance was investigated de novo by an appropriate individual who has no prior involvement in or connection with the matters contained within the grievance.

I also recommend that mediation is offered to the Worker and the colleagues making the complaints about her.

Having carefully considered the submissions of the parties, I recommend that the Employer commences an immediate investigation of the Worker’s grievance of 1st May 2019 and that this process is conducted on a de novo basis by a new independent investigator. I further recommend that, in the interest of all parties, the process be brought to a speedy conclusion.

I also recommend that mediation is offered to the Worker and the colleagues making the complaints about her.

The Worker submits as follows:  

One of the matters raised in the grievance was the issuing by Ms E of a disciplinary warning dated 5th March 2019 which, was entirely unjustified.

The Worker argues that on Tuesday 26th February 2019 she opened the door for Ms E and continued with her cleaning. Ms E did not close the door behind her, and a customer walked in. Ms E told the Worker not to do it again. The Worker claims that this had been a practice for the last 10 years, it is an old habit. She claims that over the years Ms E accepted that the staff opened the door earlier or, similarly stayed with a client after the closing time. On the next day she forgot and opened the door for a customer 5-6 minutes before the opening time. She claims that the customer walked in but she did not start work earlier.

The Worker claims that she was invited to a meeting in the staff room. She was not given advance notice, was not informed of her right to have representation, no minutes were taken. Subsequently, she received a letter issuing her with a written warning. The Worker claims that the warning is excessively punitive, grossly unfair and totally unwarranted,

The Worker seeks a recommendation that this disciplinary process and the warning is unjustified and should be withdrawn.

The Worker also submits that on 27th July 2019 she received another letter from the Employer in respect of her performance. The letter informs that an investigation would be conducted but no action was taken.

The series of events detailed in the letter of 5th March 2019 are not contested by the Worker in terms of the facts. In her submission to the Commission the Worker however attempts to argue that the events were not significant and were to be balanced by virtue of the fact that she did on occasions work beyond her finishing time. This was not the issue as detailed in the letter. The Employer was highlighting two potentially serious issues. The first was that in inviting customers on to the premises ahead of its scheduled opening could have repercussions for the Employer in respect of potential insurance claims. This of itself was a serious issue but of greater concern was the fact that having been warned by the owner regarding the issue on 26th February 2019 the Worker proceeded to immediately ignore the instruction. The very next day 27th February 2019 the Worker again ignored company policy and the expressed instruction of the owner and once again opened the premises to customers outside of working hours. Apart from this blatant disregard for the instructions of the owner the Worker's action resulted in a very embarrassing encounter between the owner and the customers who had been allowed to enter the premises. On foot of this some of these customers have never returned to business.

•        It is the view of the Employer that the issuing of the letter of warning is not excessively punitive and was a fair and measured response to a serious issue of gross insubordination. In fact, in retrospect the Employer is of the view that the action taken was excessively lenient.

•        It again has to be noted that the Worker had avenues open to her to pursue this matter prior to it being referred to the WRC. It is again the view of the Employer that this is an abuse of process by the Worker.

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code provides that the procedure employed must comply with the general principles of natural justice and fair procedures which include:

·         That details of any allegations or complaints are put to the employee concerned;

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

I sought and was provided with the Employer’s disciplinary procedure following the hearing. I note that it cannot be stated that the Employer abided by its own policy.

It is well established in case law that when conducting a disciplinary process, there is a clear onus on an employer to demonstrate that fair process and procedures were applied.

As the impugned warning ceased to have existence, I recommend that that the warning be expunged entirely from the Worker’s record / personnel file and not referred to in the future.

In respect of the allegations raised in the letter of 27th July 2019, I recommend that the Employer commences an investigation in line with the S.I. 146 of 2000 without any further delay.

Flawed disciplinary investigation- grievance process – Industrial Relations Act