Complainant

Respondent

Anonymised Parties

A Worker

A Limited Company

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-00032464-001

25/11/2019

The case today concerns a claim under Section 13 of the Industrial Relations Act, 1969, against the worker’s employer

The Worker submitted a formal complaint of bullying in the workplace on 24th May 2019.

The Worker contends the Investigation process conducted by the respondent was not in line with fair procedures or the principles of natural justice. The Worker contends that the process was not carried out in line with SI146 Code of Practice for Grievance & Disciplinary Procedures which states:

“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.”

The Worker also contends that the Investigation & Appeals process were not in line with the Code of Practice on Addressing Bulling in the Workplace which states:

“The investigation should be conducted thoroughly, objectively with sensitivity”

The Worker is seeking a recommendation that an external, independent Investigation be carried out by an agreed third party, of his formal bullying complaint.

Background:

The Worker commenced employment with the respondent as a Tool Room Trainee in February 2015. His hours of work are 39 hours per week and his rate of pay is €470.00 gross per week.

On 24th May 2019 the Worker lodged a formal complaint of bullying in the workplace against his colleague Mr. NS. The worker referred to a time period of 4 years of verbal abuse, and he referenced examples of inappropriate comments and bullying behaviour directed at the Worker from Mr. NS.

The Worker also stated that he previously verbally raised his concerns on numerous occasions in the past but that these incidents had not been dealt with by management.

The Worker also referred to an incident on 28th March 2019 where he experienced chest pains in the workplace. On reporting the issue to Mr. NS, the Worker contends he was told he should consider his position in the tool room and should respond to Mr. NS by the next day.

The Worker has suffered ill health and stress related symptoms as a result for the ongoing treatment in the workplace. He is currently on sick leave from work due to work related stress.

Investigation

Following the formal complaint being lodged, the Worker met with Mr. SL, Managing Director and Mr. YM on 31st May 2019 to discuss the complaint.

In a letter of 31st May 2019 to the Worker , Mr. SL referred to the commencement of a thorough investigation in the Worker’s complaint.

There were no terms of reference provided to the Worker at the commencement of the investigation to outline clear steps on how the process would be conducted.

The letter of 31st May from the respondent pre-empted the outcome of any investigation process and was used by the respondent to refute elements of the Worker’s complaint.

“However, we felt it necessary to clarify some points and discuss inaccuracies in your letter.”

•             The letter refers to inaccuracies, false statements and directly contradicts the Worker’s complaint.

•             The letter states that ‘this is wholly inaccurate” that the worker had previously raised issues with the respondent.

•             It then states ’Mxxx agreed that various issues had arose over the last few years of your employment’, which contradicts the previous assertion.

•             Re Paragraph 6 the respondent’s letter states, ‘this is a false statement’ and goes on to challenge the Worker’s statement regarding his health issues.

•             Re Paragraph 8-10 the respondent’s letter states ‘ it was under the careful guidance of Jxxx’ to yet again contradict the Worker’s letter of complaint.

The correspondence highlights that, from the outset the Investigation process was unfair, prejudicial and was not impartial. It sought to discredit the Worker’s complaint and to reach conclusions before the commencement of the process.

The respondent then carried out an investigation. The respondent wrote to the Worker on 11th June to outline the findings of the investigation.

In the findings regarding an alleged comment by Mr. NS to the Worker the respondent ‘you must have gone to a college of retards’ the complaint was not upheld as Mr. NS denied the comment and the witnesses did not hear it being said.

However, in the next paragraph it states “J & M did say that they remembered the conversation and that it was good natured banter rather than a serious comment”

Mr. SL did not uphold the complaint of bullying and referenced the behaviour in The Worker’s complaint against Mr. NS as good-natured banter and reasonable behaviour.

There were no minutes provided to the Worker of any of the meetings conducted with the other parties.

Appeal Process

The Worker appealed the outcome of the Investigation.

Ms. YC, another Manager carried out the appeal.

The Worker met Ms. YC on 3rd September 2019.

The Worker provided details of a witness to his allegation of bullying, Mr. EK Despite witness evidence from Mr. EK, the Worker’s appeal was not upheld by Ms. YC

Ms. YC had interviewed another employee Mr. ND who also referred to issues in the Tool room as friendly banter. The process was not impartial and witness evidence was not properly considered.

Unfair Investigation Procedures

From the outset the Investigation procedures were flawed and unfair towards The Worker.

Prior to lodging the formal complaint, the Worker has raised issues verbally on repeated occasions with Mr. YM. In the letter of 31st May, Mr. SL refutes parts of The Worker’s complaint without the process having commenced including the fact that issues had been raised previously by The Worker.

The process was prejudicial and biased from the outset and Mr. SL cannot be viewed as objective or impartial party to carry out the process.

There were no clear Terms of Reference provided to the process. The Code of Practice on Bullying in the Workplace states ‘the investigation should be governed by terms of reference, preferably agreed between the parties in advance’”

Witness evidence was not properly assessed on the balance of probabilities. Ms. YC conducted an interview with Mr. ND, without him being put forward as a witness by any of the parties, in order to support the respondent’s conclusion that the inappropriate behaviours experienced by The Worker was ‘friendly banter.’

The Worker contends that due to personal relationship between Ms. YC and Mr. SL, that the appeal could not be viewed as impartial.

The entire Investigation was flawed and therefore the outcome was flawed. The Worker is currently out of work with work related stress and has experienced ill health directly as a result of the process.

The Respondent was founded in 1972, and is based in Co. Wicklow. The Company has approximately 130 employees and supplies high quality products to the pharma, medical and food packaging industries.

Background

The worker commenced employment on the 9 February 2015 as an assembler and transitioned to the tool room on the 13 July 2015. The Worker officially commenced as a Tool Maintenance Trainee in May 2018.

In May 2018, The Worker went straight onto Phase 2 (Year 2) of the training programme, as he had some experience in the tool room. On the 28 and 29 March 2019, the Worker went on medically certified sick leave.

From the 31 March to the 6 April 2019, The Worker was on certified sick leave for ‘costochondritis and stress’.

On his return to work, Ms YC (Commercial Director) approached The Worker to enquire how he was. She had heard that he had been in hospital. The Worker outlined that he thought the reason he was ill was that he had hurt himself through strain during a recent return to football training.

On the 15 May 2019, Mr YM(The Worker’s manager) and his training mentor (Mr NS) met to review The Worker’s performance on phase two of the training plan and completed the internal progression scale.

On the 17 May, Mr YM spoke with the Worker about his performance and advised him that he would not be moving to the next phase of the training programme, based on the feedback given in the training plan.

Each phase of the programme is linked to a pay scale, which meant the Worker would not be progressing to the next stage of the pay scale. The Worker had previously been told informally by both Mr NS and Mr YM on numerous occasions that there were some concerns with his performance, so this meeting would not come as a surprise to him. Mr NS did not meet with The Worker as he was not working on the 16 and 17 May 2019.

After this meeting, The Worker asked to meet with Mr SL (Managing Director).   Mr SL outlined he was happy to meet with The Worker; however, it would have to be after his shift handover meeting which would last about ten minutes. Rather than meeting Mr SL, the Worker left the office stating that he was “going to get a medical cert to get time off”.

From the 20 May until the 3 June 2019, The Worker went out on medically certified sick leave, citing ‘medical illness’.

On the 24 May, the Worker submitted a formal complaint to his manager and Mr SL alleging bullying by his training mentor, Mr NS. The Worker also stated that the sick leave on the 28 and 29 March 2019 was indicative of work-related stress due to the alleged bullying.

On the 27 May 2019, Mr SL wrote to The Worker advising him that a full investigation into his complaint would be conducted

On the 31 May 2019, Mr YM and Mr SL met with The Worker to go through his complaint. The Worker was offered to bring representation to the meeting, however this was declined by him. The letter received from the Worker was reviewed in depth with clarification and corrections regarding some of the contained statements. A letter confirming what was discussed was sent to The Worker after this meeting. The letter also advised that the investigation into his complaint would continue.

From the 4 June to the 2 July 2019, the Worker was on certified sick leave for ‘work related stress’.

On the 10 June 2019, correspondence was sent to The Worker advising that a full investigation of his complaint had been completed, finding Mr NS not to have bullied him.   It also advised him that it would be requested of the tool room team not to engage in the typical type of communication style generally used.

On the 13 June 2019, Mr NS received an update on the investigation, advising him of the outcome. It was also requested that the communication style generally used in the tool room no longer be used with the Worker .

From the 2 July until the 2 August 2019, The Worker continued on certified sick leave, citing a ‘medical problem’ .

On the 19 July 2019, The Worker sent correspondence to Mr SL noting his disagreement with the investigation findings and advised his next step would be to escalate this to the WRC .

On the 31 July 2019, Mr SL advised The Worker that he could appeal the investigation findings.

From the 1 August until the 29 August 2019, The Worker continued on medically certified sick leave.

On the 5 August 2019, the Worker emailed Mr SL confirming he wished to appeal the investigation findings.

On the 27 August 2019, the Worker attended Occupational Health.   The report outlined that The Worker’s health had improved to support a return to work, however there was a short-term illness. The Worker refused to admit to a drugs test as part of this assessment.

On the 30 August 2019, The Worker submitted a sick cert covering an absence from the 30 August until the 29 November 2019, citing ‘physical and mental strain related to work’ .

On the 3 September 2019, Ms YC met with the Worker to go through his appeal.   At this meeting, The Worker had representation. It should be noted that the Worker outlined in the meeting that he had another witness he wished to be interviewed, however refused to submit any detail on who this witness was. The witness that the Worker called upon (CK) had not worked for the Respondent since 2017, however the Company still sought to meet with him. The complaint that the Worker made related to specific incidents in 2019, meaning the evidence given by the witness was not relevant. In addition, any incidents between The Worker and Mr NS that the witness recalled were interactions about The Worker’s performance which would be seen as normal within an employee/employer relationship.

On the 25 September 2019, correspondence was sent to the Worker advising that the appeal investigation was completed, again finding Mr NS not to have bullied him. Ms YC highlighted that the appeal investigation found the style of communication used within the tool room to be unprofessional and advised that this would be addressed by training and communication

On the 11 November 2019, Ms NF (HR Manager) wrote to the Worker inviting him to meet on the 19 November, to discuss how the Company could facilitate his return to work.

On the 12 November 2019, The Worker wrote to Ms YC advising that he would be escalating this to the WRC . Ms YC acknowledged receipt of this on the 15 November 2019.

On the 14 November 2019, Ms NF sent a request to the Occupational Health specialist to contact The Worker’s GP to assess his return to work. The Worker continues to not engage with the Company regarding his return to work, despite numerous attempts to engage with him.

Company arguments

It is the Company’s position that they acted fairly and reasonably in respect to the claim of bullying by The Worker. The Respondent followed their own internal procedures, which the Worker had received.

The policy outlines that a:

‘thorough investigation will be made in cases of reported bullying/harassment. Determination and findings will be sent, in writing, to the complainant after the investigation is complete. Investigation findings may be appealed to the Managing Director or Commercial Director’.

The Worker’s complaint was initially investigated by the Managing Director. He was issued the findings in writing.

The Worker subsequently appealed the findings to the Commercial Director who issued him with her findings in writing.

After both the investigation and the appeal, the complaint that The Worker made had no evidence to substantiate. Based on the balance of probabilities and lack of evidence to the claim, his complaint was not upheld.

The rules of natural justice were adhered throughout the process.   The Worker was offered the right to representation at investigation and appeal meetings.

In A Manager v A Hospital, the Complainant raised a bullying complaint against his line manager.   The Respondent fully investigated the complaint in line with their procedures; however, the complaint was not upheld. The Complainant alleged that the investigation was ‘fundamentally flawed’ and he had no right to appeal.   He had been on sick leave from January 2018.

In its decision, the Adjudicator concluded that the investigation was carried out in accordance with the company’s procedures. It was recommended that the Complainant accept the outcome and work with the Respondent to discuss a potential return to work.

Having carefully considered the evidence of both parties together with the submissions and supporting documentation, I am making the following recommendations.

1.       The worker should accept the findings of the investigation and appeals officers.

2.       The worker should accept that the respondent followed its own procedures correctly and that the findings, were fair and unbiased based on the evidence that was before them at the material time.

3.       The respondent should carry out a training course to inform employees of an appropriate way to converse with one and other whilst in the workplace.

4.       The respondent should arrange to meet with the worker to discuss a return to work date.

I am making the following recommendations:

1.            The worker should accept the findings of the investigation and appeals officers.

2.            The worker should accept that the respondent followed its own procedures correctly and   that the findings, were fair and unbiased based on the evidence that was before them at the material time.

3.            The respondent should carry out a training course to inform employees of an appropriate way to converse with one and other whilst in the workplace.

4.            The respondent should arrange to meet with the worker to discuss a return to work date.