FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : QUALITY AND QUALIFICATIONS IRELAND (QQI) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MARTIN E MARREN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Procedural unfairness in relation to a bullying complaint
BACKGROUND:
2. This dispute concerns procedural unfairness in relation to a bullying complaint. The Worker referred this case to the Labour Court on 9 July 2018 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place on 16 October 2019.
RECOMMENDATION:
2
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and concerns a claim by a worker who claims that she was subjected to procedural unfairness following a bullying complaint she made to her employer. She claimed that (i) there were serious and grave deficiencies in the investigation process and findings which served to undermined the integrity of the entire process, (ii) the procedures adopted by the employer were flawed, (iii) there was collusion by the parties against whom the allegations were made to influence witnesses, to denigrate her and to conceal evidence of their actions and (iv) the employer failed to give any reasonable consideration to her appeal.
The employer submitted that the investigation into the Claimant’s complaints which was conducted by an external investigation company, was thorough, professional and complete. She had agreed to the terms of reference in advance and was given a copy of all statements made by the parties complained of and any other witnesses. It stated that the Claimant had a full opportunity to respond to those statements and put forward her own version of events.
The Claimant’s Case
The Claimant through her legal representative, Mr. Paul Marren, Solicitor, Marten E. Marren Solicitors, referred to an email from one of the alleged perpetrators who stated that in his view the mediation process he was about to enter was a “waste of time”. He also alleged that the investigation report demonstrated evidence of widespread breach of confidentiality in the sharing of evidence with potential witnesses who were due to come before the investigators. It also contained evidence the destruction of email communication between the alleged perpetrator and collusion in ensuring evidence was consistent. It was also submitted that it was highly inappropriate for a party, who is the subject of a complaint under investigation, to draft witness statements for alleged independent witnesses. In one of these statements, the Claimant is described as “mentally unstable”. Mr. Marren described the appeal process as mere tokenism as there was no attempt to consider the matter or the appeal. He stated that the Managing Director of the appointed company to carry out the investigation was also the person who drew up the Company’s employment policies. He referred to a confidential document presented to the investigators by the alleged perpetrator No 1, with instructions that it was information for the investigator only and was not to be distributed to the Claimant. He submitted that, while it did not form part of the investigation, however, he contended that the failure to address or evaluate the confidential document or the inconsistencies in the evidence presented by the alleged perpetrator and a relevant witness was a failure in the process. He submitted that critical evidence that was presented was not considered or evaluated and the investigation having found that misleading evidence had been given in relation to one issue failed to make similar findings when presented by the alleged perpetrator who had presented the same evidence. In conclusion, Mr Marren alleged that notwithstanding the extensive nature of the investigation, there was a flagrant and extensive breach of confidentiality in the furnishing of confidential transcript evidence to potential witnesses, coupled with the attempts made to synchronise and coordinate evidence and the failure to reasonably assess and weight the evidence, all of which denied the Claimant her entitlement to natural justice.
The Company’s Position
Mr. McGrath Ibec, on behalf of the Company, stated that the external investigation company was recruited through a public procurement process. He said that the investigation findings reflect a thorough procedure conducted in line with the principles of natural justice and the employer is satisfied that it was conducted in an appropriate manner and the findings are reliable.
Mr. McGrath denied that there was a ‘conspiracy and ‘collusion’ between the co accused individuals and contended that there were no facts to support this contention. Indeed, he said that much of the correspondence referred to predates the formal investigation process. Furthermore, he stated that there was nothing in the Claimant’s submission to indicate that the co accused provided anything to the investigation which was misleading or factually incorrect. He said that the investigation was expertly carried out and any suggestion to the contrary was merely speculative and without factual basis.
Mr. McGrath referred to the fact that the Claimant was given an opportunity to review and comment on all statements provided to the investigation team and would have been in a position to point out any factual inaccuracies or fabrications by those individuals, which she did.
The Investigators Report
The investigation report in allegation No 1, found that while certain behaviour towards the Claimant was deeply upsetting to her it did not amount to bullying behaviour. It also held that management had failed in its responsibilities to manage the situation more sensitively with her. The investigation report found that the Claimant was culpable of a breach of confidentiality which it considered entirely inappropriate behaviour resulting in distress for the alleged perpetrator. Similarly, it found that by providing information to the European Commission on the investigation, that behaviour by alleged perpetrator No 1 was entirely inappropriate behaviour resulting in distress for the Claimant. However, the report held that neither party strictly adhered to their obligations to keep matters confidential and that this contributed to a detrimental impact on their working relationship. However, it held that it did not impact on the integrity of the investigation. In conclusion, the investigators did not uphold a complaint of bullying against alleged perpetrator No 1.
The report found that the Claimant had failed to engage in a mediation process and despite raising difficulties in the workplace since the commencement of her employment, she had failed to present a formal complaint until March 2016 after her role in EQAVET had finished. It held that having reviewed the correspondence between the alleged perpetrator and the Claimant, the investigation team was satisfied that it did not demonstrate actions that could objectively be found as inappropriate. It appears that the Claimant’s disposition at the time, rather than the alleged perpetrator’s actions, set the flavour to the relationship that developed.
With regard to investigation report No 2, concerning allegations of bullying against a second alleged perpetrator, the investigation team concluded that it did not uphold the Claimant’s complaints against that person. It held that after January 2016 when the Claimant moved to Denzille Lane and was no longer involved in EQAVET work, that the two alleged perpetrators had no direct reporting relationship with the Claimant and therefore had no need to discuss EQAVET matters with her. With regard to an email sent by the alleged perpetrator concerning the EQAVET newsletter, the investigators held that on balance the email was unwarranted and was upsetting for the Claimant, was an afront to her dignity at work and was unnecessary. Equally, it held that the Claimant’s part in breaching confidentiality as raised by the alleged perpetrator was entirely inappropriate behaviour resulting in distress for the latter. It held that the alleged perpetrator was attempting to assist the Claimant when errors were made rather than having an intent to undermine and upset the Claimant. It noted that while the Claimant had raised concerns as far back as 2013 regarding the alleged perpetrator No 1, she had only retrospectively included alleged perpetrator No. 2. In conclusion, the investigators did not uphold a complaint of bullying against alleged perpetrator No 2, on the contrary it held that she offered support to the Claimant which the Claimant did not accept. It held that the catalyst to the Claimant’s complaints in March 2016, was the fact that her EQAVET contract was not extended in January 2016.
Findings and Conclusions of the Court
The Court notes that following the Claimant’s complaint made under its Dignity at Work policy, the employer facilitated a mediation process to try and resolve matters in an informal manner, however, this did not result in a resolution of the complaints made. The employer then engaged the services of an external professional body to carry out a formal investigation into the complaints. There was no objection to the investigators chosen. The terms of reference were agreed without objection. Having examined the process the Court is satisfied that the Claimant was afforded the opportunity to be represented during the investigation process, she was given access to all necessary documentation, her nominated witnesses were interviewed by the investigation team, she was supplied with a copy of the report and provided with an opportunity to respond to it and finally she was provided with an appeal mechanism. On that basis the Court cannot find that her entitlement to natural justice was infringed and it is satisfied that the investigators report was properly executed.
The Claimant was very critical about information she uncovered as a result of requests she made under the provisions of The Data Protection Act, which she alleged indicated intentions to conspire against her and to ensure that the evidence given to the investigation team was consistent. The Court notes that this information was not made available and not known to the investigation team and consequently could not have been considered by them. The Court is of the view that any attempt to co-ordinate evidence to an investigation is wholly inappropriate. While the investigators report did not uphold allegation of bullying against the alleged perpetrators, it is of concern to the Court that such a properly constituted investigation report should find that there were particular behaviours towards the Claimant that were inappropriate and resulted in distress for her, amounting to an affront to her as a person and to her dignity at work. The Court is of the view that an employer must protect employees from such behaviour.
The Court notes that the employer has in place a Dignity at Work policy and has, since this complaint and in the past, provided mandatory training on its policy for all employees.
Recommendation
In all the circumstances of this case, the Court is of the view that the Claimant should be compensated for the distress caused. Therefore, the Court recommends that the employer should pay her an ex-gratia lump sum of €4,000, which should be accepted by the Claimant in full and final settlement of the claim.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
21 October 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.