Complainant

Respondent

Anonymised Parties

A Driver

A Transport Company

Representatives

  NBRU

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-00035166-001

10/03/2020

In Mach 2020 the complainant submitted a grievance over treatment he had received which he regarded as bullying.

In that complaint he said that management had failed to give a written response to the grievance as required by the agreed procedures.

He is also currently appealing a number of disciplinary charges because of what he regards as unfair treatment

He also says he is owed compensation for loss of earning arising from an assault.

The issue before the Workplace Relations Commission arises from a claim by a driver. The matter was previously before the WRC in January and April.

At the April hearing, the Adjudication Officer proposed to the parties that the matter should be investigated under the Company Grievance procedure and the hearing was deferred.

The company engaged an independent investigator to investigate this matter and following the agreement by the parties to terms of reference the investigation got underway in May or June.

This was agreed by the complainant and by his tradeunion There was no restriction on the issues the complainant could bring to the attention of the investigator.

The investigation concluded and the report issued on December 14th 2021 and was forwarded to the complainant.

The respondent views the matter as concluded; having been independently investigated with the conclusion that the complaint was not upheld.

As noted above the complaint was submitted on March 10th, 2020.

While the complainant was aggrieved by the delays in processing the issue it seems likely, as argued by the respondent, that the public health restrictions played a part in the delay in 2020.

In any event, agreement was reached in April 2021 on a way forward and an external investigator commissioned in May/June.

In the meantime, despite the fact that the investigation was continuing the complainant persuaded the WRC in November to list his complaints for a hearing.

He should not have done so, knowing well that the internal investigation was continuing on foot of the agreement reached in April (to which he was a party) as how the matter would be processed.

While the investigation took a further six months its conclusions were published on December 14th (two days before the hearing).

It is clear that the issue still resides in the workplace, and the basis for the original referral has now been disposed of.

The complainant needs to take the advice of his trade union and reflect on his position in relation to the investigation, and what, if any value there is to him in persisting with the issue. This then needs to be formally communicated to the respondent.

While the reports of such investigations are not binding the investigator is a highly experienced and respected neutral and in the absence of some serious procedural or substantive error it is not a sufficient basis for rejecting the findings that the complainant did not get the outcome he was hoping for.

Similarly, there was a reference at the hearing to a failure to interview certain witnesses, but this lies within the prerogative and judgement of the independent investigator. It will not of itself render the outcome of an investigation unfair and any decision of the investigator in that regard must be respected.

This is especially the case as the investigator noted that the complainant ‘forwarded [him] a considerable amount of both written and recorded information regarding a variety of matters’. From this I conclude that the complainant put everything before the investigator that he wished to be considered.

I note that the respondent considers this aspect of the matter to be concluded.

I note further given that the respondent who was the subject of the investigation has retired and there is very limited value in pursuing a matter when the subject of it is clearly beyond the reach of his employer at this stage.

I have read the investigator’s report and its conclusions are quite clear and definite and while I make no formal recommendation (for the reasons set out here; that it is still a local matter) I see no prospect of a significantly different outcome whatever the complainant does next.

The respondent also has to move immediately to address the other issues in the case. As part of the April 2021 agreement there was a ‘stay’ on disciplinary proceedings until the investigation concluded, so it, too, has decisions to make.

While it is not entirely clear to me why this should have been necesssary, any outstanding disciplinary matter should be immediately progressed (a view shared by the investigator).

Either way, given these facts the WRC has no role in the matter until there is some new breach of the complainant’s rights.

But the position in respect of the actual complaint referred in April 2020 is that the respondent has acted on the agreement made in April under the auspices of the WRC and that matter is now closed.

The issued referred to the WRC in the complaint have been processed and the matter is again between the parties. I recommend that they meet as soon as possible to review outstanding issues and set a timetable for action.

The matters referred in this complaint have been progressed in accordance with an agreement between the parties and the basis for the original referral is now discharged.

It now rests with the parties as a workplace matter and the complainant needs to fully respect established agreements and processes.

I recommend that the respondent engage with the complainant early in 2022 and set out a framework for the processing of any outstanding issues.

Investigation, local procedures.