ADJ-00030339

Complainant

Respondent

Anonymised Parties

Admin Assistant

College Union

Representatives

Ger Malone SIPTU

Brian McGann SIPTU

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-00039863-001

16/09/2020

The Complainant initiated complaints of bullying against her Department Head.  The Complainant stated the Respondent had not recognising the agreed Internal policy and were defending deviating from the agreed Terms of Reference which agreed to use their internal policy and its definitions and in turn she stated the Respondent had not supported her or followed the agreed protocol.  The Respondent stated that they appointed an independent investigator who followed the most up to date legislation and best practice in place at the time and stand over their process.

The Complainant submitted a complaint in line with the company dignity at respect policy and the Complainants representative confirmed that the terms of reference (TOR) were agreed by all parties. All parties engaged in agreeing the terms of reference for the investigation process and at no point objected to the process once it was agreed.

In March 2018, the complainant met with the Head of Organisational Development & Support Services to discuss what options she had to progress complaints against the Head of the College, which had resulted in her falling ill with workplace related stress, depression and anxiety and was certified unfit to work from October 2017 to July 2018.

On 13 April 2018, the Complainant initiated a formal complaint under the dignity at work policy and sent the written complaint to Head of Organisational Development & Support Services.

The Complainant stated in July 2018, accompanied by her representative attended mediation under the auspices of the WRC, no agreement was reached.

The Complainant stated in August 2018 both sides agreed that an investigation would be carried out. From September 2018 to 20 December 2018, there were various exchanges relating to agreeing the Terms of Reference. The investigation commenced in January 2019.

The Complainant confirmed a draft of the report was sent on 1 October 2018 along with the accused final statement which the Complainant was not required to respond to.

The Complainant responded on 14 October and outlined in detail her reasons for disagreeing with details in the report.

The TOR stated “The investigation was to investigate the incidents and determine if there had been any breaches of the Company’s Policy or legal guidelines governing such incidents”

The Complainant stated that the investigator had made no reference to the Company Policy which was not complying with the agreed TOR and was not acceptable. The Company had committed to complying with the standards in their handbook and the report to include findings based on those standards. The SIPTU’s obligations were set out and these should form part of the considerations as to whether any breaches occurred. Under the heading “investigation” it stated “The complainant was assured that the complaint should be fully investigated and that they should not be victimised for making a complaint” The Complainant felt from the outset that she was a being victimised with the cryptic references to “vexatious” and even after being told that was outside the scope of the investigation the respondent continued to refer to that.  The complainant stated that the tone and content of the correspondence from the respondent and her representative was hostile, threatening and intimidating. The Investigator needed to take her responses to the respondent’s final statement into account for consideration and comment.

The Complainant stated she disagreed with the separation of the complaints, as there was a common thread throughout and it was more than communication style, and the style of the respondent was more than “abrupt” at times when interacting with her, it at times was aggressive and hostile and she found it offensive. The Complainant stated that they properly followed the procedures for making a complaint as outlined in the Code of Practice referred to earlier and the Company Policy. She endured the treatment as long as she could as it became clear that it was a pattern becoming part and parcel of the interactions and she was feeling more and more degraded and worthless, so she invoked the procedures. The Complainant opted to engage in the informal process first and provided the written details and there was ample opportunity for the respondent if she so wished to resolve this through dialogue. She then progressed the complaints formally. The Code of Practice stated “C) stated “A complainant may decide, for whatever reason, to bypass the informal procedure. Choosing not to use the informal procedure should not reflect negatively on a complaint in the formal procedure” The Complainant stated taking that in context it was incorrect to conclude the opportunity had not been awarded to the respondent. Inappropriate needed to be included and considered in the context of the Company’s Policy and intent. The conclusions examine the complaints at the micro and macro level and the accumulated result and must consider the environment that she found herself in and the serious negative effects it had on her.

The Complainant stated it was repeated disregard and inappropriate treatment and repeated bullying and intimidation that was often humiliating and degrading, and it did undermine her confidence and dignity and interfered with her health, morale and ability to work. And it negatively affected others that witnessed it, which was precisely what was described in the policy. This must be rejected in the findings.

The Complainant also responded to the final statement made by the accused. The final report was issued without any changes on 22 October 2019.

The Head of Organisational Development & Support Services wrote to the SRC on 15 January 2020 informing that the Organisation were accepting the findings and recommendations. On 30 January 2020, they wrote back informing that the complainant had rejected the report in its entirety and offered to have a chat about it. On 12 February 2020, the case was referred to the Joint Industrial Council (JIC) (internal tripartite dispute resolution body).

The JIC, finding stated;

1)   The JIC was of the view that the Investigator for whatever reason did digress from the agreed terms of reference. 2)   A great deal of time and effort was put in by the parties in arriving at the agreed terms of reference and deviation from these should only have been done by the agreement of the parties. 3)   Both parties should now request that the investigator reissue his report within the agreed terms of reference” 

The Complainant stated the terms of reference were agreed and included ““The investigation will be in accordance with the Respect for Others in the Workplace Policy and in line with the agreed terms of reference” This was repeated in the methodology in the T.O.R.

The Complainant stated it was evident from the report, the Investigator had not applied the definition of what constitutes bullying within the Organisation’s Respect for Others in the Workplace Policy.

The Complainant outlined their Policy stated ““bullying and intimidation is a humiliating and degrading experience which undermines the confidence and dignity of those affected by it and can interfere with an individual’s health, morale and ability to work. Harassment may also have an impact on employees who are not themselves the subject of unwanted behaviour, but who witness it or have knowledge of unwanted behaviour”.

The Complainant outlined in detail the reasons she disagreed with the report, yet her objections were not responded to. The Investigator had failed to provide any explanation for his decision to deviate from the agreed Terms of Reference. The Investigator was obliged to comply with the full terms of reference

The Complainant outlined the case could only be considered within the agreed terms of reference by applying their own policy standard. To do anything else would in effect defunct their policy and leave a scenario whereby they have no anti bullying policy and staff would have no protection against being bullied.

The Complainant proved with two witnesses that she was humiliated and degraded, in front of them on separate occasions. She had explained how her confidence and dignity was shattered, her morale was at an all-time low in over 30 years of service and her health was interfered with to such an extent that she was certified unfit to work for eight months and treated with medication and therapy. It was also proven that the witnesses were adversely affected by the treatment they witnessed the complainant being subjected to. This was consistent with the definition of bullying within their “Respect for others in the workplace”.

The Complainant stated the policy sets out the company; as an employer, responsibilities.

a)  Explaining the company’s policy to staff and taking steps to positively promote it. That hasn’t happened. b)  Ensuring that persons with a propensity to bully will not be employed in positions of authority.

This had not been complied with

c)  Being responsive and supportive to any member of staff who complains of harassment.

The Complainant stated they were not aware of any internal support measures for complainants. The complainant in this case had not been provided with any;

d)  Making available designated trained persons to provide advice and assistance such as offering guidance and resolving the harassment problems, assistance in submitting a grievance if the employees wish to complain formally and to offer advice and counselling

The organisation had not actioned that;

e) Provided full and clear advice on the procedure to be adopted and maintain confidentiality in all cases

The Complainant stated the reality was that there were no proactive measures in place to promote respect for others in the workplace. There were no measures in place to prevent bullying. Nor were there any known remedial measures for offenders. There were no supports for the complainants and in fact there had been no follow up by management with her.

The Respondent stated an allegation had been made and an independent agreed investigator has been appointed. The Complainant made a complaint regarding the report after the investigation was completed.  The Respondent stated the Investigator did not uphold the bullying complaint and the Investigator had also made recommendations.  The Respondent confirmed they had accepted the report and recommendations.

They stated that they could not and would not recommend for an investigator to do anything but act independently in their role and they did that in this case after agreeing the TOR.

The Respondent stated that the internal policy as well as the current best practice standards should have been used and that was the fundamental issue of the Complainants case as she only wanted the policy in its strictest form to be considered even though it is not an updated version of the policy as they could not progress updating same with the union. 

The Respondent stated they believed current standards should be considered as case law had over taken the policy and they were as employers in the process of doing that.

The Respondent confirmed they would engage in consultation in drafting up to date policy and they had tried to agree same as there was an impasse currently with the union in progressing this.

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

13. - (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

The Complainant stated the company inhouse Dignity at Respect Bullying Policy was not the one used in this investigation despite it being agreed in the terms of reference as the one that would be used. 

The Respondent stated they had done all they could to try to facilitate the investigation and followed its recommendation.  The Respondent confirmed the initial subject of the complaint had now retired.  They also stated that the challenge of agreeing an up-to-date policy with the union should not impact the investigator who was independent to use best practice standards and they were independent in their approach.

I find the investigator was independent in their appointment and they agreed terms of reference not withstanding that however the Investigator needs to take account of the recent case law and legislative updates to reflect an up to date finding and recommendation in any investigation at that point in time.

On that basis I recommend that the parties accept the Investigators findings.

I recommend the Complainant and Respondent engage meaningfully to finalise their bullying policy in line with the updated Bullying Code of Practice.