Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Health Services Provider

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-00038268-001

22/06/2020

The complainant has been employed as a clerical officer since 2002. She was temporary for about three years and in 2005, she was made permanent. In 2012, she commenced in a role as a secretary and receptionist in a clinic in the South East of the country, which is the location of this dispute.

In December 2017, a conflict emerged between the complainant and another employee in the clinic. I will refer to this employee as “EE.” In January 2018, EE complained that she was being bullied by the complainant. In November 2018, they attended mediation but, from the complainant’s perspective, relations between them did not improve.   Matters escalated for the complainant on February 15th 2019 when EE walked into her as she was standing in a corridor speaking with another colleague. On March 11th 2019, she submitted a request for a formal investigation into EE’s behaviour.

In accordance with its Dignity at Work Policy, in May 2019, the respondent’s human resources (HR) department carried out a preliminary screening of the complainant’s request for an investigation. In July, the complaint was accepted for an investigation and, in August, investigators were nominated.   In October, terms of reference were drawn up. In December, one of the investigators informed the HR department that she wasn’t in a position to conduct the investigation and another investigator was identified. That person said that he could not make himself available until February 2020.   On March 27th 2020, shortly after the outbreak of Covid 19, all investigations and non-critical HR work was suspended, as resources were diverted to the management of the crisis in the health services.

On June 22nd 2020, the complainant submitted this grievance to the WRC. On her referral form, she said that she heard nothing from management since December 2019 and “I am left to continue with this ongoing behaviour from (EE).” As well as her complaint of bullying by EE, her grievance is compounded by the respondent’s failure to carry out the investigation or to make any progress since March 2019.

On November 12th 2020, the complainant was advised that investigations were resuming and that two investigators had been identified to handle her complaint. Also in November, she was offered the option of moving to another work location, but she declined this option. On December 21st, she was invited to a meeting with the investigators on January 18th 2021, three days after this adjudication hearing.

At the hearing on January 15th 2021, the complainant said that EE is “fixated” on her and that her life at work has been intolerable since December 2017.   She gave examples of how EE stares at her, glares at her and how in February 2019, she appeared to deliberately bump into her on the corridor. The complainant said that she has been at work for the duration of the Covid 19 pandemic and that EE has also been at work. During the last 10 months, she found it very difficult to cope with EE’s behaviour and she said that she feels that she has been abandoned by management.

On November 12th 2020, the complainant said that there was an escalation of EE’s behaviour towards her and she spoke with her line manager. She said that her line manager contacted the HR department and EE has been requested not to enter the complainant’s office. A risk assessment was then carried out and the complainant was offered the option of moving to a different location. She said that she has a responsible job and that she wants to progress in that job. She is offended at the offer of a move and she doesn’t see why she should move.

On December 4th 2020, the complainant and the respondent were informed that this hearing at the WRC would take place on January 15th 2021. On December 22nd, the complainant was invited to the first meeting with the investigators on January 18th 2021. She thinks that the only reason that the meeting is taking place on January 18th 2021 is because this hearing was scheduled at the WRC.

The complainant described the ongoing situation as “brutal.” Her opinion is that her employer is in breach of their duty of care towards her because she looked for help, but got no support. She said that she wasn’t informed that certain non-essential HR services and investigations were suspended from March to November 2020 because of the Covid crisis.

The respondent’s case is that the investigation into the complainant’s grievance was delayed because of the failure of two investigators to fulfil their commitments to participate, and then due to the suspension of investigations from the end of March 2020.   In November 2020, some non-critical work resumed and, on November 12th, the HR department contacted the complainant to confirm that another investigation team was ready to commence.

In their submission in advance of the hearing of this complaint, the respondent said that the complainant has pointed out in correspondence of May 2018, that she rarely has any interaction with EE and that she doesn’t see her from one day to the next.   Despite this, in November 2020, following a risk assessment, the complainant was offered a transfer to another location. This offer was made as a support to the complainant, and not as a reflection of her conduct and not in any way as a punishment or as penalisation for making a complaint. The complainant has also been offered the support of her line manager and the employee assistance service and the occupational health service.

While the issues between the complainant and EE originated in December 2017, the complaint which will be investigated on January 18th 2021 was lodged in March 2019. The respondent submitted that the previous issues were dealt with in mediation and are closed.

At the hearing, the employee relations manager acknowledged the delay commencing the formal investigation into the complainant’s concerns about the behaviour of EE and she sincerely apologised for the effect this has had on the complainant. She said however, that there are reasonable explanations for the delay and genuine efforts have been made to try to make progress, but that, “we need to see the process through.” The employee relations manager said that there is a clear commitment from the respondent to proceed with the investigation and she confirmed the commencement of interviews on Monday, January 18th. She said that she deeply regrets the delay moving this process forward and she said that they will carry out whatever recommendations emerge from the investigations process. The employer will continue to provide support to the complainant and the offer of a transfer remains open.

In the meantime, the employee relations manager requested that the grievance which is before me today is not upheld, because the fundamental issue which is the delay in moving forward with an investigation will shortly be resolved.

At the hearing, the general manager of the area where the complainant works said that in December 2019, when she was informed that one of the investigators had dropped out, she looked for a replacement and, when she discovered that that person couldn’t start until February 2020, she asked the investigations team to find someone else.   She apologised for not communicating with the complainant regarding the suspension of HR work during the pandemic.

The general manager said that the time taken to deal with the complainant’s grievance is unacceptable, but she said that it is difficult not to accept that the Covid crisis has had an impact. She said that she contacted the HR department in September or October 2020, but didn’t get a response. She said she was surprised that a meeting has been arranged as soon as January 18th.

Because the complainant’s grievance concerning the behaviour of EE has not been investigated, it is not possible for me to offer any recommendation regarding how this specific matter should be resolved. One option is for the complainant to move to a different location, but she is adamant that this is not acceptable, even on a temporary basis.

At the hearing, I listened to the complainant’s description of how she has been affected by EE’s behaviour, and it is apparent that she is extremely anxious and upset. Clearly, the length of time it has taken to investigate her complaint is not helpful.   I accept that she was not officially informed that investigations were put on hold from the end of March 2020; however, it must have been obvious to her, as someone working in the health services, that only critical work was being undertaken. That said, I acknowledge that for the complainant, the resolution of her complaint is a critical matter.

It became evident at the hearing that the practice of assigning the investigation of complaints to qualified people in the organisation is no longer practical, due to the normal burden of work that each of these people carries. The employee relations manager said that a change had been recommended regarding the assignment of this work and that external investigators would soon be appointed. In the meantime, two investigators will commence hearing from the complainant and EE on Monday, January 18th. In view of the very delayed start to the investigation, I would encourage the respondent, from a workload perspective, to allow the investigators to give priority to completing the interviews and to making recommendations for resolving this matter by the end of February 2021 at the latest.

I recommend that the respondent sets a deadline for the resolution of the investigation into the complainant’s grievance so that proposals for a resolution are presented to both sides by Friday, February 26th 2021.

Dignity at Work, delayed investigation