Complainant

Respondent

Anonymised Parties

Restaurant worker

Restaurant owner

Representatives

Self-represented

IBEC

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-00033233-001

12/12/2019

The worker commenced employment in October 2016 as full time General Assistant in the employer’s restaurant. She earns a gross weekly salary of €550.

The worker states that she experienced repeated Instances of bullying from colleagues during the period December 2018 – November 2019.The employer failed to deal with the matter.

Her health was damaged as a result of the employer’s inaction. She is currently on sick leave.

The worker worked as a General Assistant in the employer’s restaurant.

The worker states that she was bullied in the workplace by colleagues from December 2018- November 2019 and that the employer did nothing to assist her.

She wants to work in a place where she is treated with dignity.

The worker states that from December 2018 – March 2019 she has been bullied by   Restaurant Manager 1, who is the Director’s partner.

When Manager 2 went on maternity leave in December 2018, the worker replaced her and became the Acting Manager. The training was inadequate for this role and if she made a mistake Manager 1 shouted at her.

On 5/2 /2019 and 8/2/2019. Manager 1 shouted at her in front of staff and doubted her ability to be a manager. The worker was overloaded with responsibilities in this acting position. She is held responsible if the staff are not doing the job properly, she had to mind the restaurant, do the administration work and supervise and arrange staffing rosters etc. She became upset with Manager 1 because on 8/2/2019 she said to the worker if you are unhappy here, go and get job elsewhere. She suffered sleeplessness as a result of Manager 1’s attitude towards her. The worker explained to the Director that Manager 1 was causing stress and upset to other staff members and frequently exhibiting anger at the worker’s performance. The Director stated that if there were any further incidents, she was to go to him and not engage with Manager 1.

The worker stated that matters improved with Manager 1 after March.

On 8 August 2019, Manager 2 who had returned from maternity leave, threw bread at the worker in front of other staff and customers because she believed the worker had spoken rudely to a customer.

On the 15 August 2019 the worker asked for a meeting with the Director. On the 16 August 2019 the worker emailed her boss highlighting the issues discussed at the meeting on the previous day. She spoke about the issues of conflict with Manager 2 and how Manager 2 shouts at her and other staff members and complains about the quality of the worker’s work. She explained to the Director that she felt humiliated and depressed by Manager 2’ s behaviour. The worker sent a message to the Director on 23 August to report more shouting at her from Manager 2. She stated she would not work with Manager 2 anymore. She told the Director of how the Manager falsely used the worker’s signature to sign the time sheet.

The respondent never returned to advise her of how he had dealt with Manager 2 on foot of her meeting with him on 15 August.

The worker submitted a complaint to the Director of aggressive behaviour on the part of Manager 2 towards her on 25 November. She received no response to this email contrary to what the Director asserts at the hearing.

She submitted undated letters from colleagues referring to aggression on the part of the Manager 2 and of being overworked.

She submitted letters from her GP signing her off work in February 2020 and remarking that the worker had been attending him since November 2019 due to work related stress. She submitted receipts for counselling. She states she experienced serious health consequences as a result of the employer’s failure to tackle the matter. The worker is on sick leave since 15 November.

She asked the Director on two occasions to address the matter. He failed to do anything.

She referred the complaint to the WRC on 12 December 2019.

The respondent employs 30 people in their two cafes.

The worker sent an email on 25 November to the Director setting out instances of what she considered to be bullying by her Manager, which took place between 6- 14 November 2019. She included a sick cert citing illness. The worker has been on sick leave since that date.

Issues of conflict with Manager 1 were resolved in July 2019.

Witness 1

Witness 1 was Director at the relevant period. He stated to the hearing that the worker told him that Manager 2 had thrown bread at her on 8 August. This was out of character for Manager 2 to have done such a thing. Manager 2 told the director that the worker had abused her. The Manager would not give the Director the details of the abuse meted out to her by the worker. He advised the Manager that she had been wrong, that it should not have happened. Manager 2 accepted that that she had behaved badly. She apologised. The director was informed of sporadic conflict between the worker and the Manager. The Director encouraged the worker to sit down with Manager 2 and to try and resolve it.

Upon receipt of the worker’s email and sick cert of 25 November, the Director emailed the worker on 29 November inviting her to meet him to examine the complaints in detail. On 29 November he offered an off-site meeting. On 10 December the Director emailed the worker again, noted that she had 2 email addresses and asked her to contact him, so they could map a way forward. While the worker denies receiving the emails, she did reply from the email address to which he had sent an email to her seeking her tips.

The Director had to consult other staff concerning the complaints listed in her email of 25 November. The Manager was on maternity leave.

He tried to engage with the worker on 3 occasions, but she declined to do so. . She should have given the company a chance to fix the problem. She had 4 months within which to engage with Manager 1.

The worker failed to engage with the process. She underwent induction training in Grievance and Anti- Bullying/ Harassment policies. She signed a copy of the Company Handbook on 18 October 2016. The respondent’s representative refers to cases, albeit involving complaint of constructive dismissal, but which went against the complainant because he had failed to exhaust internal procedures before resigning. The same obligation lies with the worker in the instant case to exhaust internal procedures before referring the matter to the WRC.

The respondent requests the adjudicator to reject the worker’s complaint as she has failed to follow correct procedures.

It is not my function to declare that the incidents complained of constitute bullying, rather, I must establish if the employer did or did not engage in their agreed processes set up to address such matters.

The evidence suggests that the incidents occurring between December 2018- March 2019 were dealt with and the worker made no further complaints concerning Manager 1.

The sequence of events is that the worker advised the employer on 16 August of demeaning behaviour by Manager 2. The Director encouraged them to sit down and try and resolve it informally. That did not happen. The worker made a written complaint on the 25 November.

The company’s procedure for processing complaints of bullying allows for an informal route to be explored. The worker did not take up this option. Should that prove to be inconclusive a formal investigation may be undertaken. The first steps in a formal investigation are surely to meet the complainant and examine the complaints. The worker was offered an opportunity to meet and participate in such an investigation and identify the next steps. The respondent did undertake steps as required by the procedure to determine the facts. The worker disengaged from the process.

There is a requirement for an employee to engage with the processes before they engage the services of the WRC.

The worker is very upset, and the incidents have taken a toll on her. It is regrettable that the worker suffered ill health because of the conflictual situation in the workplace and the demeaning behaviours, but those incidents of which she complains and which she alleges are the basis of her ill health do not absolve her of a responsibility to engage with the employer to try and rectify the matter before the matters are referred to the WRC.

I find that after the worker submitted her written complaint on 25 November and went on sick leave, the employer tried to contact her to set up a pathway to deal with the points of conflict. The worker opted out of any engagement on the matter. I accept that the employer made 3 attempts to engage with her with a view to identifying a process for dealing with her complaint. I find that the employer did engage with the agreed process. The procedure is very spare as to the steps which the employer should take after the informal option is declined and also after initiating an investigation into a formal complaint.

I recommend that the employer review their procedure for dealing with complaints of bullying and that they adopt S.1 No 17of 2002, Code of Practice detailing Procedures for Addressing Bullying in the Workplace (Declaration) Order, 2002. I recommend that the employer sets out for the employee the different stages of how her complaint can be dealt with.

I recommend that the employer source and fund an Employee Assistance Programme for the worker so that a pathway back to the workplace can be identified. I recommend that the employer pays for the two counselling sessions for which she has submitted receipts.

I recommend that the employer review their procedure for dealing with complaints of bullying and that they adopt S.1 No 17of 2002, Code of Practice detailing Procedures for Addressing Bullying in the Workplace (Declaration) Order, 2002. I recommend that the employer sets out for the employee the different stages of how her complaint can be dealt with.

I recommend that the employer source and fund an Employee Assistance Programme for the worker so that a pathway back to the workplace can be identified. I recommend that the employer pays for the two counselling sessions for which she has submitted receipts.