Complainant

Respondent

Anonymised Parties

An Operative

A Public Service Organisation

Representatives

Cormac O'Dálaigh Communication Workers Union

Human Resource Manager

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-00025420-001

30/01/2019

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

CA-00026055-001

06/02/2019

The worker was employed by the respondent in 1999 as an outdoor operative in location A. He worked there until 2015 when he was compulsory transferred to location B. He is seeking promotion to the position of Working Leader, so he can retire on the pension for that grade. He believes a complaint of bullying and harassment made against him which was not upheld prevented his promotion to the grade.

The union submitted that the worker has had a long-standing grievance with the company which started when he was accused by one of his work colleagues (Mr. A) of bullying. The investigation which took 7 months to complete found that the worker had no case to answer. The union submitted the case left a very bad atmosphere in the office. Mr. A, the person who had taken the case went on long-term sick leave. The worker attempted to bring a case against Mr. A over the allegations but this was refused by the HR manager. The worker was given an acting role with some supervisory work. He was informed in advance of his colleague Mr. A’s return to work after sick leave and was advised by his manager to avoid him. In 2010 location A consolidated with location C. In advance of the consolidation the respondent advertised vacancies for working leader in the new amalgamated location. The worker applied for one of these positions and he was unsuccessful in his application, but he was assured by a manager that he would be the number one person for acting up. Shortly afterwards one of the successful candidates turned down the role but they company did not honour their commitment to the worker. The worker was given a role in the new consolidated office (AC).

The worker continued to argue that he should have been given the working leader position and his Union representative was told at a meeting with the manager in 2014 that because of the history between the worker and his colleague, Mr. A. the worker would that be considered for the position. The worker and Mr. A continued to work in the same office and the worker raised concerns on many occasions about Mr. A’s behaviour with his supervisor. Mr. A also complained about the worker. The worker was not happy with his supervisor’s response to his concerns as their working relationship was not great. In January 2014, the worker came into the possession of an email sent by the supervisor to the operations manager in 2010 alleging that the worker had been awarded money in a case he took against the company. The worker said that this was an untrue rumour being circulated about him and it shows a pattern of bias against him in the company.

In 2014 the worker again attempted through his local Union representative be allowed act as a work leader, however this was again refused by his local manager. A dispute arose in 2015 between the worker and his supervisor when an issue concerning payment for covering for a colleague’s absence escalated and the worker lost his temper. He contends that this happened because of his frustration with his supervisor attitude towards him or over the previous number of years. This led to the worker being compulsory transferred to location A in January 2015.

The union submitted that he has worked in this office without incident and regularly performs the role of acting team leader and this office.   The worker contends that because of the company's actions he has been frustrated from being promoted to the position of team leader. The complaint taken against him was proven to be unfounded, but he believes it has had negative consequences for him ever since. In response to the unions claim the company states that the worker was not considered for acting roles because he would not work or give instructions to Mr. A. The worker strongly denies ever saying this. The worker believe he was the most suitable person for the role and if had been given a position he would now be able to retire on a working leaders pension which is 20% more than his current position. He is seeking promotion to the position for pension purposes.

The employer submitted that the matter concerns the worker’s belief that the company deprived him of an opportunity to become a working leader stemming from his belief that his previous bullying and harassment issues have not been dealt with properly. The employer submitted that the origins of the working relationship at the office are relevant to the employee’s contention that the company deprived him of a supervisory role.

In 2005 the company carried out an investigation into allegations of bullying and harassment against the worker made by his co-worker Mr. A.

The matter was investigated, and the allegations of bullying were not upheld but the worker was unhappy in the way the findings of the investigation were summarised and presented to him. Correspondence on this point were exchanged between the employer and the worker’s solicitor at the time in 2006. The investigations conclusions were that both parties engaged in arguments relating to their differing opinions as to how their duties should be carried out, that their working relationship deteriorated over time, and they were ongoing difficulties between the men which was obvious to all the staff in the office.

in October 2006 there was a further alleged serious verbal altercations between the worker and Mr. A and both made complaints about bullying and harassment. In response to this complaint from the worker the Operations Manager and the HR manager met with him. The worker provided further material in relation to bullying and harassment in February 2007 and for several reasons connected with the availability of witnesses the investigation did not go ahead. The worker was informed of the reasons an investigation of his complaints against Mr. A would not commence. The investigators also informed the worker that the most appropriate means to address the interpersonal difficulties between himself and Mr. A was through the services of an independent mediator. The process would be an opportunity to address his difficulties with Mr A. The worker indicated that he would agree to mediation but expressed disappointment with the company's response to his complaints.

The worker subsequently sought an update on the investigation in November 2007 and again in May 2008 and again it was explained to him the difficulties with the investigation and the witnesses. The HR manager then organised a mediation of the matter, but the worker declined to take part and the company believed that was the end of the matter.

The worker returned from sick leave on the 30th of November 2009 to location AC having declined an offer of a similar position in location B. His duties involved some interaction with Mr A, but a local arrangement was put in place where the team leader did part of this work to avoid the necessity of both the worker and Mr A interacting. Mr A reported on the 11th of December 2009 that the bullying and harassment from the worker with starting again and he gave some examples. In January 2010 the worker reported that Mr A was staring at him and he felt under pressure and felt he was being intimidated. The HR manager spoke to both parties and advise them to stay clear of each other. A further complaint is made by Mr A on the 28th of June 2010 about the worker. In 2013 there were further reported tensions arising between the worker and Mr A and both sides were spoken to in order to restore order.

In May 2014 the worker asked his manager about being trained as acting working leader. This request was refused because it would involve the worker having to work with Mr A with whom he had refused to work. The worker became agitated and went home sick immediately. The worker apologised to his manager re his behaviour and that apology was accepted. On the 18th of December 2014 the worker wrote to the company stating that he wished to lodge a formal complaint against manager because of the alleged deliberate denial of overtime since the introduction of overtime processing in 2011. He also complained that he applied for and was unsuccessful for the position of team leader but was awarded a position of acting team leader. About two weeks later the worker entered the manager's office and engaged in aggressive language and behaviour and he was subsequently sent home by his manager. Thereafter he received a letter from the HR manager inviting him to a meeting on the 12th of January 2015. The HR manager wrote to the worker outlining that he could not be considered for acting duties in circumstances where he informed his manager that he would not work with Mr A. Entitlement to overtime as working leader could not be given whilst he would not take up working leader work. He was informed by the HR manager that he did not uphold his grievance but that he was available to discuss it further with him.

On the 16th of January 2015 the HR manager wrote to the worker referring to a meeting that occurred and the 9th of January 2015 and informing him that the behaviour previously with his manager was unacceptable and it was agreed at a meeting to assign the worker on a temporary basis two location B. On 16 January 2015 the HR manager wrote to the worker telling him that following enquiries it has been established that his behaviour was extreme and that his assignment to location B was extended. On 18 February 2015, the worker wrote to the HR manager lodging a complaint against his manager about overtime complaint and his involvement in a court case unrelated to this complaint. He also claimed that he had already apologise for his behaviour to his manager, but his manager had been provocative. In a letter of the 25th of May 2016, the HR manager addressed the complaints and informed that worker there was an opportunity if he wished to apply for duty in a general duty competition in Dublin. In response to a letter from the worker's union on the 25th of May 2016 the respondent informed the Union that the worker was not removed from his duty at location AC but that he was facilitated with a temporary assignment in a role there and that a more permanent employee has now gained that duty thereby displacing him and that after coming under notice about his behaviour towards his manager he was sent to appropriate work in location B as an alternative to suspension and disciplinary action.

Is a submitted that the component was not removed from the job in Location C, but that he was assigned to the job for medical reasons on a temporary basis as he could not perform his outdoor duties. The indoor duty was subsequently assigned permanently to another more senior employee through competition and was no longer available to the worker. The company was trying to deal with an employee who had health issues in a meaningful and practical way together with his Union. He was reassigned to a duty appropriate to his capacity for work in an alternative office B as an alternative to suspension and disciplinary action for gross misconduct and insubordination. He received due process to the enquiries into his behaviour in the office and the company also addressed a number of grievances that he raised subsequently.

The worker did not object to the decision to reassign him and he did not refer to this decision in the grievances that he raised after the decision to relocate him. He was afforded an exhaustive process over a period of 9 years in which resolve these issues within the office and his case was finally dropped when it was due to come before the high Court in 2014. Nonetheless the repeated behaviour that the worker directed towards his manager and the entrenched position towards another employee together with his apparent disregard for his own responsibilities under the company’s dignity at work policy left the company with no option other than to reassign him to an alternative office if a positive work environment was not to be restored in the office. Good relations have largely been restored in the office period the office that played the part in creating significant stresses over a number of years and he refused to leave these issues in the past when the court proceedings were halted. The worker continues to adopt the position that he would not only refused to engage in any way with Mr. B while having an expectation that his manager would provide him with acting working leader opportunities and overtime that did not involve having any contact with this employee. He attended a meeting with his manager in May 2014 where he displayed hostile behaviour.   His manager accepted his apology of that occasion while the worker also provided assurances to the regional operations and HR management that there will be no recurrence of that behaviour. He attended another meeting on the 6th of January 2015 with his manager where he directed abusive language at him. The regional management met with him on the 9th of January 2015 where the complaint stated he wished to apologise for his behaviour. The company set out reasons following an investigation why the worker due to his aggressive behaviour could not continue to work and in location C. The position he continued to adopt after the procedures were exhausted was having a significant impact on his colleagues, his manager and the working environment. His relocation was an alternative to potential to disciplinary action which may have included a relocation to an alternative office in any case. He received due process in addressing these issues and the findings and enquiries carried out into his grievances, his engagement with his colleagues and his manager only confirms that his behaviour was not conducive to a good working environment. The worker refused to work with another individual in location C and his position has not changed. He applied for the position Work Leader in location C nearly 10 years ago and was unsuccessful. The reason he was not allowed to act as working leader in location C during his time was because he would not interact with another staff member because he had serious workplace issues with him. Therefore, he could not carry out the full scope of his role. Since the worker was moved to location B he has acted frequently as work leader and the higher duty allowance is considered in his pension calculations.

It was submitted that the worker failed to secure a working leader position in a competitive process and that is claim that that it should be given to him for the purposes of his pension is not a valid claim. The company request that the claim be rejected.

The union confirmed that the only claim before me is a claim for promotion of the worker to the position of working leader for pension purposes. I note the both parties accept that the appointment to working leader is by a competitive competition. I note that the worker applied for the position about 10 years ago and was unsuccessful, but he has not applied for this post since then even though there was a competitive competition about 2 years ago. The employer states that is more than likely that a competition for this post will be coming up shortly. In the circumstances where access to a permanent Working Leader position is by competitive competition, I cannot recommend that the claim be granted.

I recommend that the claim not be granted.

Industrial Relations Act, promotion