Complainant

Respondent

Anonymised Parties

Farm Worker

Farming Enterprise

Representatives

John Duggan Callan Tansey Solicitors

Self

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-00039426-001

28/08/2020

This dispute is concerned with the investigation of a complaint by the Employee of an incident between the Employee and another Employee, the conduct of the investigation and the appeal process. The complaint was made by the Employee regarding an incident on the 22nd of January 2020. An external investigator was appointed by the Employer. Terms of reference were put in place for the investigation. The investigation was conducted by way of interviews between the 4th and 6th of February 2020. There is a document described as a draft report which it is said was provided to the Employee on February 14th, 2020. On the same day, the Employee was provided with the witness statements and the statement of the other Employee. A final report was subsequently provided by the Investigator. The policy provides a ten-day period from receipt of report to submit comments on the findings. The Employee did not provide any response to the report. Correspondence was issued on his behalf by his solicitor on 24 March 2020. The Employee gave as the date on which his employment ended the 31st of March 2020 when he left the employment.

It is the Employee’s case that the investigation was not properly carried out or in a manner which was fair to the Employee. The conclusions set out in the report dated 14th February 2020 were not warranted by the circumstances nor the manner in which the investigation was carried out. The Employee notified the Employer of his wish to appeal the findings of the investigation in accordance with paragraph 31(15) of the Employee handbook on the 24th of March 2020 but there was no response from the Employer. The Employee resigned his employment. The conduct of the investigation did not follow the terms of reference set out in appendix 1 of the report in that the Employee was not given an opportunity to respond to preliminary findings prior to completion of the report as required by paragraph 2i of the terms of reference which states: “Prior to completion of report both parties will get an opportunity to respond to the preliminary findings”. Furthermore, the investigation did not adhere to the requirements of the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures. In particular, the Employee was given no opportunity to properly consider and respond to the statements of two named witnesses attached to the report. The Employee was not given any copies of these statements prior to his second meeting with the investigator which took place on February 6th, 2020. At the meeting parts of the statements were read to him and he was asked to respond. However, he was not given copies of the statements or allowed to read them. It is his position that the conclusions arrived at in the report have not been properly arrived as they have been arrived at without obtaining or considering all of the evidence. Compensation for loss of eight weeks earnings was sought by the Employee.  His rate of pay was €550 per week gross.

case and another Employee. Shortly after the incident, the Employee in this case informed a senior person of what he alleged had happened. On January 29th, a formal complaint was submitted to the Employer. To ensure fairness and separation the Employer engaged with a third-party HR representative to carry out the investigation. On February 4th, 2020, a meeting was held with the Employee to discuss the details of his written complaint. A further meeting was held on the 6th of February whereby the Employee was provided with the respondent Employee’s response along with the revised terms of reference. Additionally, the witness statements of two other people who were identified were also provided to the Employee which he took with him. He was invited to respond verbally or in writing if he wished. No supplementary response was received from the Employee to the investigator as is evident from the investigation report. There was a meeting between the Employee and the investigator on February 12th, 2020 at which he was provided with the statements and the preliminary report.

On February 14th, the Employee was provided with the investigation report. As per the bullying and harassment policy section 31(13) as provided for in appendix 10, the Employee had ten days from the date on which the report was given to him in which to submit comments in writing to the investigator’s findings. The Employee did not provide any response to the report and the investigator determined that as no response was submitted the Employee had no comments in relation to the report. There were no comments received from the respondent Employee either. The investigation was deemed to be complete.

In relation to an appeal, section 31(15) of the Company’s policy makes it clear that the Employee is aware that he had 14 days to submit an appeal from the date the investigation report was provided to the Employee. The Employee did not directly submit an appeal, however his solicitor submitted a request for an appeal in a letter dated 24th of March 26 working days after the date the investigation report was provided to the Employee. The Employer considers that they took all reasonable steps in engaging an external person, that it was their understanding that the process set out in the terms of reference was followed and that the Employee had sight of the report and did not contribute any comments; that he had not complied with the appeals process as set out in the policy which would be known to him.

At the hearing, the parties were asked how it was decided that the single incident reported by the Employee was investigated under the internal bullying procedure. Neither could answer this question and it is decided on the balance of probability that the investigator prepared the terms of reference in which at item 2h it states: “The investigator will consider whether a - the complaint falls within the definition of bulling at work and whether the complaint has been upheld”. Given that this was a single incident which involved an allegation of causing him a physical injury, it is concluded that the Employee was placed into an investigation, the first test of which could not be upheld under one of the terms of reference. In this regard it is noted that due to difficulties around an email address the Employee did not receive the terms of reference until he attended for his interview on the 4th of February 2020. Notwithstanding this conclusion it is accepted that at point 2h b the specific incident was to be addressed for  a second time under a different  term which said that “the actions of the alleged offender resulted in an object car mirror to strike offended party in the face as alleged”. The third test is to decide whether a “referral to Garda Síochána recommended/not recommended” is a term of reference and scope of the investigation which it is found is quite unusual. The point here is that the placing of what was essentially a grievance within the context of an investigation of a definition of bullying and then followed by a civil matter was a flawed commencement point to this investigation. In this regard it is important to record that the Employee did not use the term bullying in his grievance document.

In relation to the process, which was followed, it is accepted that the Employee attended a meeting with the investigator on the 13th of February 2020 which was notified to him on the previous day by the investigator and which contained the statement: “I will have the report for final review tomorrow which will be accompanied by all notes of all meetings in relation to this investigation. I will of course furnish you copies of all material”. At that point, the investigator had prepared a preliminary report based on statements provided to him by the respondent Employee and witnesses, none of which had been provided to the Employee in this case for consideration or comment in advance of any meeting or at all until the preliminary report was produced. The Employee’s contention that sections of the statements of others were read to him at a meeting is accepted as credible based on the investigator’s own statement that he would be providing the Employee with copies of any material on the 13th of February. What exactly happened at that meeting between the investigator and the Employee is not entirely clear in that the Employer understands that the Employee “left the meeting early”. Of concern in considering this case, is that the investigator’s own correspondence of the 12th of February suggests that the report was, as he said, “for final review tomorrow which will be accompanied by all meetings in relation to this investigation”. The Employee understood at that meeting that the preliminary findings did not favour his complaint. In terms of due process, there is nothing to indicate that the Employee was given any notification in writing of a period of time to consider the preliminary report and to make any comments before it was finalised. While the nature of an incident and as far as is possible, a speedy investigation can be desirable in certain circumstances, what occurred here is that the Employee did not receive the evidence of others before the preliminary report stage. This could pass the procedural fairness tests if the Employee then had received the opportunity to review the documents and the preliminary report with a reasonable opportunity to consider those and to challenge the evidence he was seeing for the first time, or to provide new evidence. This was an investigation under terms of reference of bullying and a potential civil matter-it was not a matter of the standing of an individual grievance and therefore the standards expected in terms of due process are higher in a case where reputations are at stake. In this case, there is nothing on record that the Employee had the opportunity for a considered review of the material, or the preliminary report at or after the meeting on February 13th.

On the question of an appeal, apart from the investigator apparently telling the Employee he could appeal the findings at their meeting on February 13th, there is no correspondence on the findings or an appeal process from the Employer. Correspondence of the 13th of March 2020 from the investigator to the solicitor for the Employee states:

“I would respectfully like to inform you that [the Employee] was informed in writing on February 14th that should he wish to appeal the outcome of the investigation he should do so in writing to [named person].”

This correspondence was issued in reply to the lodging of an appeal against the report by the solicitor for the Employee to the investigator on March 11th and the solicitor was then referred by the investigator to a named person to whom the Employee’s solicitor then wrote on March 24th expressing concerns about the process followed by the investigator. Those present at the hearing on behalf of the Employer were unaware of what happened to this correspondence as it was not addressed to either of them and they were relying on follow up correspondence of March 24th, 2020, outside the appeal period.  On the point of the delay in submitting an appeal, it is accepted that as the Employer had not completed out their own processes there was some confusion on the part of the Employee as to who matters were to be addressed to in respect of the concerns regarding the procedure which had been followed which resulted in the investigator receiving an appeal with the investigator referring the solicitor  to another person and no correspondence emanating from that person at all to the solicitor in March or from the Employer later in response to further correspondence in July 2020. 

The policy at section 31(13) states that:

“The investigator will provide to the manager written report of the investigation which will include the investigator’s findings. Both the complaint and respondent will be given a copy of the report. The complainant and the respondent will have ten days from the date on which the report is given to them in which to submit comments in writing on the investigator’s findings.

31(14) Action. The manager or such other senior member of the Company’s management as appropriate will decide in light of the investigator’s report and comments made (if any) on foot of the report what action is to be taken including the referral of the matter to be dealt with under the Company disciplinary procedure.”

These procedures imply, as is the norm in such situations, that the investigator’s role is completed with the submission of the report to the Employer. It is for the Employer to seek the comments of those directly involved in the matters under investigation and thereafter to make whatever decisions they deem appropriate in consideration of the investigator’s report and any subsequent comments or appeal regarding same. What appears to have happened in this case is that the investigator took on the role of informing people verbally about an appeal. The Employer however did not take any steps after the receipt of the report to complete the process in accordance with their own policy and procedure.

While accepting that the Employer representatives at the hearing believed that they had put in place a genuine and an appropriate procedure for investigating the complaints made by the Employee, there are legitimate causes of concern in terms of the procedures that were followed in relation to the terms of reference by the unilateral inclusion of the term bullying; the inclusion of reference to a test as to whether this was to be a civil matter; the provision of the terms of reference to the Employee at his first interview; the speed at which the investigation was conducted which did not allow for a timely and proper consideration by the Employee of the testimony of others at his interview; the absence of a reasonable period in which the Employee could consider the preliminary report and the failure of the Employer to complete the procedure in accordance with their own policy following receipt of the investigation report. This latter point extends to the appeal process in that it is unfair to leave the knowledge and understanding of the appeal process to the Employee or the Investigator. Once the investigator was finished the task of investigating the complaint his role ceased and the stages of comments on the final report and or an appeal process were stages for the Employer to complete. It is for these reasons that I have decided to recommend some compensation to the Employee notwithstanding the delay in submitting an appeal and albeit at that stage to the wrong person, i.e., the investigator.

For the avoidance of doubt , nothing in these conclusions can be taken to mean any ruling or consideration of the substance of the allegation made by the Employee. This recommendation is one based on procedural considerations and not the substance of the original complaint.

CA-00039426

I recommend that the Employer pay the Employee in this case €2000 to resolve this dispute.

Investigation Procedure