Complainant

Respondent

Anonymised Parties

General Operative

Employer

Representatives

William Quigley Unite the Union

Jan Hayden TO ISSUE BY EMAIL TO: cases@ibec.ie

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-00037536-001

17/06/2020

The employee in this dispute lodged a complaint of bullying and harassment with his employer on 08 January 2020.  He is now a former employee and he was represented at the hearing by his trade union official.  The dispute concerns the policy and procedures used to investigate the employee’s complaint.  The employee claims the employer failed to use the agreed procedures, processes, and Dignity at Work Policy to investigate his complaint.  Further, that the employer refused an appeal under the Dignity at Work Policy.  The employer contends that there is no agreement to or obligation on the employer to consult or agree policies with the union before implementation. 

The employee made a complaint to his employer about his foreman.  The complaint concerned bullying and harassment of the employee.   The employer commenced an investigation under the terms of a policy described as the Bullying and Harassment Prevention Policy.

The employee is of the view that this policy was never agreed with his union and that his complaint should have been processed under the terms of a policy described as the Dignity at Work Policy.  The Dignity at Work Policy was described as the established and agreed policy between the employer and the union representing the employee.

The Bullying and Harassment Prevention Policy, the “non-agreed” policy, was being provided to new employees by the employer and they were asked to sign, acknowledging they had received the policy.  When the employee was advised by his union that the Bullying and Harassment Prevention Policy had not been agreed with his union he made it know to the employer that he did not want his complaint investigated under this “non-agreed” policy.

The employer proceeded to appoint an external investigator to conduct the investigation of the employee’s complaint under the terms of the Bullying and Harassment Policy, against the wishes of the employee.  The employee’s union official wrote to the employer and the external investigator objecting to the use of the “non-agreed” Bullying and Harassment Prevention Policy.  The employee contends the employer and the investigator ignored the representations made by his union official.

The investigator proceeded with his investigation without the involvement of the employee.  The employee views that investigation as a flawed process and he wants the outcome/report findings of that process deemed null and void.  The employee wants his complaint dealt with under the agreed Dignity at Work Policy.

History of Events:

The employee commenced employment on 19 November 2018.  He made his complaint of bullying and harassment by his foreman on 08 January 2020.  The employee first became aware of his foreman’s activity about him in March 2019.  The employee did not make a complaint at that time as his contract was up for renewal and he was fearful he would not be retained if he made a complaint.

The employee was aware of rumours being spread about his identity.  He provided relevant documents to the HR department and they were satisfied with same. 

The employee’s complaint was initially being dealt with in an informal internal process.  Meetings were held in January 2020 as part of this informal process. The employee became dissatisfied with the way the process was conducted for the following reasons.  He was not provided with minutes of the investigator’s meeting with the alleged offender, even though he had been informed that they would be provided.  The minutes of meetings held on 08 January 2020 were revised to include a reference to the Bullying and Harassment Prevention Policy.  Given his dissatisfaction with the informal process the employee decided to move to the formal process.

The employer appointed an external investigator to conduct the formal investigation.  The employer provided the external investigator with a copy of the non-agreed Bullying and Harassment Prevention Policy and Handbook, instead of the long established Dignity at Work Policy.

When the employee attended his induction training he, along with others that started at the same time, were told the employer was a unionised site and that the employees must adhere to all collective agreements and be a member of the appropriate trade union.  The employees were issued with the non-agreed Bullying and Harassment Prevention Policy and Handbook instead of the long established Dignity at Work Policy. 

The employee and his union are of the view the investigation should have been conducted under the terms of the Dignity at Work Policy.  The employee further contends that even if that policy had been used the investigation was flawed and well short of standards required.

The external investigator met with the employee on 17 February 2020.  He also met with two employer representatives, the HR Manager and the person who conducted the informal internal investigation, Mr A.  The employee was given conflicting information about the witnesses that would be interviewed by the external investigator.  He was told the employer would not be told the names of the witnesses.  This was contradicted two days later.  The draft terms of reference for the investigation, issued on 19 February 2020, had yet another statement about witnesses.

Although the external investigator had been appointed and had met with the employee on 17 February 2020 a further internal meeting took place on 27 February 2020.  Mr A requested the employee to come to his office.  Mr A began to talk about the complaint and when the employee left he shouted after him.  These are some of the reasons why the investigation was flawed.

The employee’s union representative raised issues with the employer about the use of the Bullying and Harassment Prevention Policy, a policy that was not agreed between employer and unions.  The union representative also raised an issue about the draft terms of reference for the investigation.  The union representative did not accept that his role would be limited to ‘support and advisor to the individual’.  The external investigator stated in correspondence that all parties must be happy with the terms of reference before the investigation commenced.

The employee, on 05 March 2020, confirmed that his complaint still stood but he wanted it investigated under the Dignity at Work Policy.   The employee denies that he withdrew his complaint.  The HR Manager on 06 March 2020, noted that the employee had signed the Bullying and Harassment Prevention Policy and his contract when he was first employed.  The employee and his union state that these documents were unilaterally introduced by management unknown to the unions and new recruits.

The external investigator proceeded with his investigation even though the employee and his union representative objected to the terms of reference.   The employee and his union representative did not participate in the investigation and do not accept the report produced by the investigator.

Union Position:

The union did not agree the Bullying and Harassment Prevention Policy with management.  The agreed policy is the Dignity at Work Policy.

During an industrial dispute in 2020 the employer posted a notice for employees advising them that the new contact person for the non-agreed Bullying and Harassment Prevention Policy was the manager who had conducted the employee’s informal complaint, Mr A.  The union, on behalf of its members, wrote to the employer opposing management unilaterally imposing the policy on their members.  The union, together with other unions, initiated meetings with management regarding reaching agreement on the introduction of a bullying and harassment policy but management stalled those meetings and so far, they have no reconvened.

Conclusion:

The employer’s handling of the employee’s complaint was unfair, sub-standard and flawed.  The outcome/report findings of that process should be deemed null and void.  The employee, now former employee, must be granted a proper investigation under the Dignity at Work Policy.  The terms of reference for such investigation must be agreed and signed off on by all parties before the process commences.

The employee lodged a complaint of bullying and harassment with the employer on 08 January 2020.  In line with company policy and procedures the employer commenced an investigation of the complaint.  The employee, based on information from his union, came to believe that the policy under which his complaint was being investigated was an unagreed policy.  He submitted a final version of his complaint but then ceased to engage in the formal investigation.

The employee believes that the employer and his union have an agreement in place to agree all or any policies with his union before a policy is implemented.  This belief is incorrect.  There is no such agreement in place with the union of which he is a member or with either of the other two unions operating within the company.  There is no agreement in place or obligation on the employer to consult with or agree any policies with the union before implementation.

The employee was employed from 19 November 2018 until 31 March 2020.  He lodged an informal complaint of bullying and harassment against a Production Foreman in January 2020.  His complaint was initially managed using the informal procedure contained in the Bullying and Harassment Prevention Policy.  The employee did not raise an objection to that policy at this point.  As was his right under the policy he lodged a first written complaint and subsequently on 03 February 2020 a revised version was lodged.  The employee notified the employer that he would submit a further version at a later stage.

The employee then submitted a Data Access Request under GDPR.  He refused to lodge the final version of his complaint until he received the records of his data request. 

The employer appointed an external investigator.  The employee and his union representative received the terms of reference for the investigation from the external investigator.  The terms of reference included a reference to the policy being used to investigate this complaint.  Correspondence was shared between all parties for several weeks following the investigators initial letter outlining the scope of the investigation.  At no time during this period of correspondence was the issue of the policy raised or any objection raised.

The policy being used in the investigation was the Bullying and Harassment Prevention Policy which was issued to employees in 2014.  The employee had signed acceptance of the policy at his induction training on 19 November 2018.  At no time did the union, or any of its members, make any objection to this policy when it was issued.  The policy has been used in a number of investigations in recent years without objection from the union.

The 2014 policy replaced a Dignity at Work Policy which had been issued in 2008.  The 2014 Bullying and Harassment Prevention Policy follows very closely the Code of Practice from the Health and Safety Authority published in 2007.  There is no deficiency in the procedures contained in the 2014 policy and it has been used without objection for several years.

Conclusion

The employer is fully entitled to amend or change policies that meet the operational needs of the business and to ensure compliance with legislative changes.  There is no agreement in place that provides that policies need to be approved by a union.

The former employee signed and accepted the policy upon commencement of his employment.  There is no reason for the union to refuse to allow their member, and former employee of the employer, have his complaint duly investigated under this policy.  Particularly as the union has in the past represented other members in grievances when this policy was used without objection.

The employer believes this complaint is not well founded and should not be upheld.

CA-00037536

Complaint under Section 13 of the Industrial Relations Act, 1969.

In his complaint form the employee submitted a dispute for investigation concerning bullying and harassment procedures.  In the narrative he describes how he submitted a complaint to his employer about bullying and harassment by a Production Foreman.  The employer began to process his complaint using the company Bullying and Harassment Prevention Policy.  The employee is a member of a union.  The union disputed the use of this policy.  The employee and the union maintain the Bullying and Harassment Prevention Policy was not agreed between the employer and the union and the employee’s complaint should have been investigated under the Dignity at Work Policy.

The employee was dissatisfied with the way the informal internal investigation was being conducted.  He wrote to the General Manager to complain about the informal investigation.  The complaint then moved to a formal investigation.  The employer appointed an external investigator to conduct the formal investigation.

When the union became aware that the employee’s complaint was being processed under the Bullying and Harassment Prevention Policy it advised the employee the policy had not been agreed with the union.  The employee was advised that his complaint should have been processed under the Dignity at Work Policy.  When the employee received this advice from his union he informed the employer he did not want his complaint investigated under the Bullying and Harassment Prevention Policy.  He wanted the complaint investigated under the Dignity at Work Policy.  That remains his position.

The employer stated that its current policy is the Bullying and Harassment Prevention Policy which was introduced in 2014.  Prior to 2014, there was a Dignity at Work Policy which was dated 2008.  The 2014 policy follows the Health and Safety Authority Code of Practice on the Prevention and Resolution of Bullying at Work, published in 2007.  The employer states that there is no agreement in place that requires it to agree company policies with the union.  Neither is there any obligation on the employer to consult about or agree company policies with the union before implementation.  The employer stated that several employees, including members of the employee’s union, have had issues investigated using the 2014 policy.

The employee acknowledged that he signed his acceptance of the Bullying and Harassment Prevention Policy at his induction in November 2018.  However, he contends he did so in the belief it had been agreed with the union representing him. 

Although the employee, through his union, had advised the employer that he would not be engaging in the investigation he submitted a revised written complaint to the employer and the external investigator on 04 March 2020.  The external investigator commenced the investigation.  The employee did not participate in the formal investigation. 

The investigator proceeded to meet with the employee against whom the bullying complaint had been made.  The investigator issued a report on 27 April 2020.  In the conclusions section of the report the investigator stated that the formal investigation could not be completed because the employee decided to withdraw from the process.  Following the employees withdrawal from the process and the absence of any witnesses to the events alleged the investigator concluded that the accusation of bullying, as alleged, was not possible to prove.  Therefore, a finding of bullying could not be made.  He recommended the file be closed.

In my opinion there are two issues that need to be resolved.  The first is that the former employee has an unresolved complaint about bullying and harassment and the procedure to be used to investigate that complaint.  The second issue concerns the status of company policies and in particular the policy dealing with bullying and harassment in the workplace.  It would be in everybody’s interest to have both issues resolved amicably as early as possible.  However, the only issue for me to adjudicate upon is the individual dispute submitted to the Workplace Relations Commission by the former employee.

Employee Complaint

 The former employee is entitled to have his complaint investigated.  His complaint has unfortunately become mired in a disagreement between the union and the employer about policies.  I am satisfied that the former employee acted on advice from his union when he withdrew from the formal investigation.   At the hearing the employer indicated it was willing to hold a new investigation under the terms of the 2014 policy, if the employee participated in the investigation.  That suggestion was not well received by the employee or the union.  In response to a question from me the union was unable to explain if there is any substantial procedural difference between the 2008 and the 2014 policy. 

In circumstances where there was no agreement between the parties on the procedure to be used in investigating the complaint, I recommend the following:

The former employee’s complaint be investigated by a new independent external investigator. 

The investigator should issue terms of reference to the parties. 

The investigation will seek to establish, on the balance of probabilities, the facts relating to the complaint. 

For this investigation I recommend that the procedure to be followed by based on that contained in the new Code of Practice on the Prevention and Resolution of Bullying at Work – S.I. 674/2020.

I urge that the employee, his union and the employer to accept this recommendation in order to conclude this specific investigation.  This recommendation is not to establish a precedent for the investigation of any other complaints.

Company Policies

The status of company policies is not an issue that has been referred for adjudication and I do not have jurisdiction to adjudicate on this issue.  However, having listened to the parties I make the following observation.

Reference was made to the Operating Agreement of 1998, (agreed between the employer and a group of unions) a recent Labour Court decision and a previous adjudication decision.  The Operating Agreement of 1998 is the main agreement in place between the employer and unions.  There is nothing in that agreement that requires the employer to agree company policies with the unions, and the union did not claim there was such.  An employer may be required by commercial circumstances or legislation to introduce, amend or update policies from time to time, and they must be free to do as required. However, it is good industrial relations practice for employers to consult with the relevant unions on the implementation of new or updated company policies.

The issue here concerns a Dignity and Respect Policy published by the employer in 2008 and a similar but better defined policy published in 2014, the Bullying and Harassment Prevent Policy.  It is surprising that a policy that has been in place for seven years only now gives rise to an issue, especially where it has been used to investigate previous complaints.  The policy or policies now need to be reviewed and updated considering S.I. 674/2020.  The new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work – S.I. 674.2020 – Industrial Relations Act, 1990, Order 2020 – which replaces the earlier codes issued by the Health and Safety Authority and the Workplace Relations Commission.    It is not productive for the parties to continue to argue whether a 2008 or a 2014 policy should be used in dealing with the serious issue of bullying and harassment complaints.  In my view it would be helpful to all parties and create a positive working environment if the employer reviews its policy and produces an Anti-Bullying Policy that reflects the content of the new Code of Practice and then consults with the unions on the implementation of that policy.

I have carefully considered the written and oral submissions in this dispute and I recommend the following:

In circumstances where there was no agreement between the parties on the procedure to be used in investigating the former employee’s complaint, I recommend:

The former employee’s complaint be investigated by a new independent external investigator. 

The investigator should issue terms of reference to the parties. 

The investigation will seek to establish, on the balance of probabilities, the facts relating to the complaint. 

For this investigation I recommend that the procedure to be followed by based on that contained in the new Code of Practice on the Prevention and Resolution of Bullying at Work – S.I. 674/2020.

I urge that the employee, his union and the employer to accept this recommendation in order to conclude this specific investigation.  This recommendation is not to establish a precedent for the investigation of any other complaints.

Bullying

Bullying and Harassment Policy

Bullying Prevention Policy

Company Policies