Worker

Employer

Anonymised Parties

A Retail Worker

A Retail Chain

Representatives

Amanda Kane of Mandate Trade Union

Niamh Ní Cheallaigh of IBEC

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-00040941-001

12/11/2020

The Dispute concerns incidents that occurred on the retail floor between a Manager and the Worker and specifically the manner in which they were investigated and concluded. It was alleged by the Worker that formal procedures were not properly followed and any outcomes from the process were accordingly invalid.

The employment commenced on the 9th October 2010 and continues.

The rate of pay was approximately €440 Gross for a 35-hour week.

On the 20th October 2019 an incident took place between the Worker and Manager, Mr.AR. It concerned a conversation between both parties at the Customer Service Desk. The Store was very busy and staff were under pressure from customers. Due to some attendance issues the front-end retail counters were short staffed. The Worker asked Mr. AR about the Staff shortages and the conversation became rather heated. The culmination was a directive from Mr. AR to the Worker to attend a meeting in the Office later that day to discuss her alleged inappropriate behaviour. The meeting took place after lunch and the Worker felt very threatened and upset by Mr. AR. At this meeting Mr. AR informed the Worker that she was not fit to work and asked her if she had “Home problems”. He ended the meeting abruptly and told the Worker to go home.

The following day (the 21st October 2019) the Worker lodged a Formal complaint, regarding the incidents, with her Line Manager (Ms. AH).  Ms. AH informed the Worker that she would investigate and interview witnesses.

An investigation meeting by Ms AH took place on the 5th November.  At this meeting Ms. AH asked the Worker if she had anything to add to her statement. She confirmed that she had been very intimidated by Mr. AR and felt her dignity had been trampled upon. Ms. AH undertook to view the CCTV footage and interview witnesses. This mostly took place on the 8th November, but Mr. AR was not interviewed until the 7th December. He gave a statement.

Sometime earlier, around the 5th December, the Worker attended a meeting called by Ms.AH. The purpose of this meeting was unclear but appeared to be an effort by Ms. AH to resolve matters informally. In attendance for Management were the Store Personnel Manager, Ms AD, Ms AH and Mr AR. Ms. AH stated that the purpose was to get the parties to apologise to each other. The Worker objected as she felt that she had lodged a proper formal grievance and these proceedings were informal.  In any event the meeting was inconclusive, and no apologies were made or received. The matters then proceeded to the Employer Head Office procedures.

A full formal meeting was held on the 20th February 2020 chaired by Mr AC, the Store Manager. He informed the meeting that he had carried out a full investigation and presented his outcome report. This was set out in a lengthy letter dated the 14th February 2020.  The Union Official present queried many aspects of the Investigation Outcome but was effectively brushed off by Mr. AC. The Worker formally appealed the 14th February investigation outcome and a hearing took place on the 22nd May with a formal outcome letter on the 21st July – eight months after the submission of the grievance. The Appeal was not upheld, and the Outcome of the 14th February was effectively endorsed.

In summary the Worker pointed out that she had raised a formal grievance on the 21st October 2019. Despite Management’s assertions to the contrary, she had never agreed to have the matter handled informally. The entire initial situation was completely against the Company Dignity at Work policy and this was compounded by the manner the Grievance had been handled or more appropriately, grossly mishandled, by Management.

Significant stress and needless anxieties had been caused to the Worker. She is due an acknowledgement that she had been the victim of a major mishandling of the grievance and deserves to be compensated in a just and equitable manner.

In the worker’s Oral evidence, she requested an apology from Mr. AR and had been looking for this since the start of the process. She strongly stated that the Company and in particular Manager, Mr. AR, had “taken her dignity and she would never get it back.”.

The Respondent acknowledged that an incident had taken place on the 20th October 2019 involving the Manager, Mr. AR and the Worker. Local informal attempts by local Managers Ms. AH and later by the Store People Manager, Ms. AH, culminating in the meeting of the 5th December proved unfruitful. The formal procedures were then followed and the Store Manager, Mr.AC, conducted a most detailed investigation. The Outcome was in his letter of the 14th February 2020. The detailed letter found that aspects of the behaviour of the Manager, Mr. AR, had certainly been unhelpful and should not have happened. The meeting in the afternoon should have been held by another non-involved Manager. However, the behaviour of the Worker also lefty something to be desired. Senior Management would speak with Mr. AR regarding the situation going forward. Steps would be put in place to ensure formal procedures were followed. The Worker was informed that while no Bullying had taken place her Grievance was largely upheld.

The Worker had appealed the 14th February decision on the grounds that it was an improper investigation, had been delayed unnecessarily and that the wishes of the Worker to have a formal investigation had been initially ignored. Manager Mr. ARX, held the Appeal Hearing and found that the Investigation leading to the 14th February letter of outcome had been conducted fairly. It was accepted that the Store had tried to deal with the matter informally at the start but had gone to a formal process when the informal approach had proved unsuccessful. Any delays were not deliberate but were attributable to Covid and the Holiday season.

At the appeal hearing the Worker had stated that she was seeking an apology from Mr. AR for his behaviour.

The Employer pointed out that under the Industrial Relations Act, 1969 the Adjudication officer is not empowered to make a specific finding regarding the outcome of a particular internal investigation.

Regarding the process the Worker had cooperated fully with the Informal process at the Store level and could not really say she had not agreed to this first approach. There was no evidence to support a Bullying allegation against Mr. AR, but it was accepted that the afternoon meeting between the parties on the 20th October had not been helpful and should not have taken place with Mr. AR.

In final summary the Employer maintained that a proper and fair Investigation and Outcome had taken place. The outcome in the 14th February letter had been appropriate.

The Employer felt that the reference to the WRC was unnecessary.

3:1          General Background/ Introduction.

This Dispute was under the Industrial Relations Act, 1969 and the Adjudicator is tasked with making a Recommendation on the merits of a dispute. The Employer Representative maintained that the role of an Adjudicator is not to engage in a re run of an internal investigation.

However, none the less, a degree of Industrial Relations flexibility is allowed to the Adjudicator in making a Recommendation.

Having reviewed all the evidence and in particular listed to the Oral evidence the old saying

“that to err is Human but to forgive is Divine”

came strongly to mind.

The Worker, particularly in her heartfelt oral evidence at the Hearing, stated that she had been subjected to “a loss of her human dignity which she will never get back.”  She had repeatedly sought an Apology from Manager, Mr. AR. but to no avail. From the evidence it appeared that Mr. AR felt equally aggrieved and that the opening verbal exchanges between the Parties, who it was acknowledged by the Worker had been friends up to this point, had got seriously out of hand. The background is relevant. It was a very busy Sunday morning in a major supermarket with a staff shortage considerably raising the stress levels of all parties. It was agreed that customers were becoming irate. All told a heady cocktail that led to a major verbal row between the Parties.

The Worker and her Union made detailed claims against the manner in which

(1)          The Agreed Procedures had been implemented

(2)           The abuse of the Dignity of the Worker.

I will review these matters below.

3:2          Procedures/ Formal or informal / General handling of same.

Regarding the Procedures of the Employer, a comment would be that the excellent agreed processes of the Employer (openly acknowledged by the Workers’ Union) were nevertheless implemented by Human beings who bring to their actions many usually very well-intentioned motivations.

While acknowledging the Worker had lodged a formal Grievance no procedure should be so inflexible as to prevent a speedy local intervention by local, relatively junior, Managers designed to resolve personal difficulties between colleagues well known to all involved. In the context of the Union case on behalf of the Worker the evidence did not point to a finding that the initial informal stages were in any way less than proper or designed to frustrate issues. The informal attempts to sort things out by the local Managers Ms. AH and Ms. AD were well intentioned. The evidence pointed to the fact that the Worker had participated in the local informal proceedings albeit always pointing out that she had lodged a Formal grievance. Unfortunately, the local proceedings came to naught – the meeting of the 5th December being the culmination.

A formal procedure by Senior Manager, Mr AC followed, and the result was set out in the Report/Letter of the 14th February 2020. This is a four-page comprehensive well-constructed letter / report and sets out in considerable detail the background and stages of the Investigation. Mr. AC gave oral evidence in amplification of the Report to the Hearing. He was clear in his view that the meeting in the afternoon of the 20th between Mr. AR and the Worker, while within a Manager’s prerogative, would best have not taken place or should, at the very least, have involved another non-involved Manager.

In the conclusions Mr. AC stated

“The grievance grounds are substantiated and that appropriate next steps will be shared with the respective colleague in line with Company procedures.”

The 1th February Report was upheld in the Appeal Process by Manager Mr. ARX - outcome on the 21st July 2020.

Reviewing the dispute against the Statutory instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures the procedures followedwere largely in keeping with the Code. Considerable efforts were made to interview witnesses and take statements which were shared with the Worker. There were unfortunate delays and some question marks over the dates and times of Witness interviews and the non-preservation of the CCTV recordings but in overall there was nothing, from the evidence presented, so amiss as to warrant dismissing the Employers actions and the Outcome as wrong or inappropriate.

In the final analysis and keeping things in proportion this was a Dispute between two colleagues on a busy stressful Sunday morning in a large Supermarket.

The Investigation was proper if delayed by a well intentioned initial informal approach by immediate colleagues.

The Procedures in the Employer are top class, and this was acknowledged by the Union even if in this case the implementation had a few lapses. However, it is an Industrial relations process not a High Court action and some flexibility is allowed. There is no case to sustain a view that the Investigation Process be set aside.

3:3        Dignity at Work.

Regarding the Worker’s feelings as regard her “Dignity” it was clear that this was a strongly felt issue for her. In her Oral evidence she clearly felt that she had to make an issue of the 20th October 2019. As an outside observer and accepting that this was a very personal issue, the evidence presented both Verbally and in Written form does not present as bleak a situation as the Union argued.

From the evidence the Company Policy on Dignity at Work did not appear to have been majorly breached. In taking her actions and preserving with them all the way to the WRC the Dignity of the Worker here could not be seen to have been as badly damaged as initially alleged.

3:4         Conclusion

This is a case which began as a local row between two colleagues. The Employer has good agreed procedures and a considerable effort was made both formally and informally to resolve this dispute. In all disputes matters must come to a final conclusion.

Accordingly, the Recommendation under the Industrial Relations Act is that the Worker recognise that the issue in dispute has gone as far as it can go and now accept the outcome.

Dignity at Work, Internal Investigation, Acceptance of Findings.