Employee

Employer

Anonymised Parties

A Commercial Administrator

A Drinks Distributor

Representatives

Not represented

Fergus Dwyer, IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00041173-001

20/11/2020

Under section 13 of the Industrial Relations Act 1969, the employee has submitted a dispute for investigation.  She claims that her employer failed to properly investigate her complaints of bullying in accordance with their procedure on dignity in the workplace.  She claims that a flawed investigation resulted in an illogical conclusion that bullying did not occur.  She further claims that she was made redundant under the guise of Covid 19 and that her dismissal on September 15th 2020 was a punishment for raising concerns about bullying and about the failure of managers to address the problem.

At the hearing on June 2nd 2021, Mr Dwyer informed me that the company is closing down, and that, of the 58 people who were employed, only 15 now remain.  The employee and her sister worked for this company and they were both made redundant.

Chronology Leading to this Dispute

Around Christmas 2019, a member of the sales team sent the employee a recording of a voicemail message.  It seems that the person who left the message didn’t end the call when he or she was finished speaking and nearby conversation in an office was picked up and recorded.  In the recording, a manager is heard advising members of her team that they have to get rid of the employee’s sister and that they are to bully her so that she ends up leaving.  I will refer to the manager who offered this advice to her team as “the protagonist.”

On January 23rd 2020, the employee brought the recorded conversation to the attention of her line manager and a member of the HR department.  She felt that she got a hostile response and that the focus of the managers was on finding out who sent her the recording.

On the same day that this meeting took place, the employee walked in on a conversation in the job canteen where a member of her sister’s team made extremely offensive sexual remarks about another employee.  When the person who made the remarks discovered that she may have been overheard, she was reported to have made profane comments about the employee and describing her as fat and lazy.  The employee asked her line manager to bring this incident to the attention of the national sales manager and to include it as a component of her overall complaint about bullying in the company.

A senior manager (“Mr AB”) was appointed to conduct an investigation and the employee attended a meeting on February 13th 2020, which she said was “incredibly badly and unfairly handled for several reasons.”

On February 28th 2020, Mr AB wrote to the employee setting out his findings.  In summary, he concluded that:

§    There was no evidence of bullying;

§    There was a culture of straight-talking and inappropriate conversations;

§    Anyone who feels uncomfortable can initiate a process to get the offensive discussion to stop;

§    There was no intimidation by the protagonist;

§    The recording did not show that bullying was going on;

§    The recording is evidence of inappropriate language which is a regular occurrence and which is unacceptable;

§    The language overheard by the employee on January 23rd was unacceptable.

Mr AB decided that all employees would be required to attend refresher training on the company’s Code of Conduct and Dignity at Work policies.  His notes of the meeting record that he decided that disciplinary action was not warranted, but his report states that “appropriate action will be taken in accordance with our Disciplinary policy in relation to the inappropriate behaviour.”

On March 11th 2020, the employee appealed against these findings and a national sales manager (“NSM”) was appointed to hear her appeal.  The Covid 19 pandemic then resulted some employees being laid off and others working from home.  Nothing happened with regard to an appeal hearing and, in July, the employee, her sister and 10 other employees were notified that their jobs would be made redundant. 

A remote meeting to hear the employee’s appeal was eventually scheduled for September 14th 2020, the day before the termination of her employment.  The employee’s sister was not interviewed in the course of the investigation or the appeal and, by the following day, they had both been made redundant. 

On October 1st 2020, NSM wrote to the employee to confirm that, while she was committed to ensuring that certain actions were taken to communicate the importance of treating people with respect at work, she upheld the outcome of the original investigation.

In her written submission, the employee said that, several times, she and her sister raised concerns with their line manager about a campaign of bullying that had been going on for months.  She named two employees who left the company because of bullying, and she claimed that, despite the fact that management were aware that bullying was taking place, nothing was done about it.

At an initial meeting in January 2020, the employee presented the recording of members of her sister’s team being encouraged to treat her in a way that would end up with her leaving.  The employee said that the focus of the meeting  was on the source of the recording rather than the content and the evidence of bullying.  She decided to make a formal complaint.  She claims that the senior manager who conducted the investigation, “Mr AB,” wasn’t independent, as he worked closely with hers and her sister’s line manager and was a member of the executive team with her.  In her written submission, she listed the ways in which she felt that the investigation meeting of February 13th 2020 was badly handled:

1.              She said that the focus of the meeting was again on finding out who sent her the recording and not on what was said in the recording.  The managers concluded that, since the person who received the recording didn’t complain about it to their manager, it could be invalid.  She said that Mr AB decided that without the name of the person who shared the recording, nothing could be done.  On February 28th 2020, in his findings, Mr AB concluded that the evidence on the recording was inadmissible.

2.              No consideration was given to the employee’s claim that several aspects of the company’s Dignity at Work policy had been violated

3.              The person who was the subject of the recorded conversation, the employee’s sister, was not consulted as part of the investigation, although the protagonist and others were interviewed.  The employee’s sister was expected to continue to report to a manager who had encouraged others to bully her.

4.              No consideration was given to evidence of bullying prior to Christmas 2019 and remarks made about the employee’s father who had died was written off as “office banter.”  When the complainant raised her concerns about homophobic remarks, she was told that it was her responsibility to inform the subject of the remarks so that he or she could make a complaint.

5.              Despite the function of the HR team member to take notes at the meeting, the employee was not provided with notes and she was informed that notes were not taken.

NSM was appointed to hear the employee’s appeal against the findings of the initial investigation.  She was concerned about this appointment also, as she felt that NSM had a close working relationship with her line manager and with Mr AB.  She was also a member of the executive team with them.

On August 14th, when she given notice that her job was redundant, she said that she spent the following weeks training other staff how to do her job and handing over to her line manager.

Although she submitted her appeal on March 11th 2020, she said that nothing was done about it and that the Covid pandemic was used as an excuse to delay taking any action.  At the appeal meeting on the day before she was made redundant, she said that she felt that NSM and her HR colleague “just had to get through the final meeting saying as little as possible so that they could finally be done with us.”

It is the employee’s case that, although she provided management with concrete evidence of a bullying campaign against her sister, proving, after several informal complaints, that bullying was going on, the evidence was ignored.  In her written submission, she said that her grievance is about the fact that the investigation into her complaint was not “thorough and robust,” as the managers asserted.  She claims that the formal investigation was “nothing more than an exercise in protecting management and trying to uncover the whistle-blower for punishment.”  She claims that she was “singled out for punishment and driven out of the company under the cover of my role being redundant, which it was not.”  In the manner in which this investigation reached a conclusion that bullying was not taking place, the employee said that the company abandoned its duty of care towards its staff and was concerned only about protecting the protagonist and her line manager.  She said that her line manager had “shielded” the protagonist from previous complaints and the staff who made these complaints had left the company.  

In the employer’s submission, Mr Dwyer said that the company is no longer financially viable and that it ceased trading on March 31st 2021.  He said that, because of the closure, many documents related to this grievance are unavailable.  On the date of the hearing of this dispute, June 2nd 2021, Mr Dwyer said that 15 of 58 employees remain with the company and the employee who  is the subject of this dispute and the person described by Mr Dwyer as “the alleged main protagonist” have been made redundant.  The employee who made the offensive remarks on January 23rd 2020 left the company when her fixed-term contract expired on May 1st 2020. 

Grievance Regarding Bullying in the Workplace

On February 13th 2020, the employee attended a meeting as part of an investigation into the grievances she submitted on January 28th and 30th.  The first incident related to the sexually offensive comments made by an employee about another employee on January 23rd and the second incident was concerned with a voice recording of the protagonist advising her team to treat the employee’s sister in such a way that she would leave the company.

Following his investigation, Mr AB reported his findings on February 28th 2020.  He noted that the employee sought to have the protagonist demoted.  While he did not uphold the employee’s allegations, based on his findings, he made a number of recommendations.  The employee appealed against these findings, making 11 specific points of objection to Mr AB’s conclusions.  Mr Dwyer said that due to the onset of the Covid pandemic and the fact that staff were laid off, the appeal was delayed for some time.  The employee attended a review meeting on September 14th 2020.  Each of the 11 points she made were addressed in the report issued by the national sales manager on October 1st 2020, including the process that led to the employee’s redundancy.  On October 9th, the employee sent an email to the employee relations manager of the parent company, informing her of her dissatisfaction with the outcome of her appeal and her intention to submit her grievance to the WRC.

On November 3rd 2020, arising from the investigation into the employee’s grievance, the managing director of the parent company sent an email to all staff.  “Due to a number of concerns being raised,” he reminded employees of their obligations under the company’s Code of Conduct and Dignity at Work policies.  The email highlighted the company’s commitment “to implementing and promoting measures to protect the dignity of all employees and to encourage respect for each other at work.” 

Redundancy

In July 2020, the parent company of the employer announced a business re-structure and its intention to reduce global headcount by 20%.  Of the 58 people employed in the company, 35 were notified that their jobs would become redundant.

On July 15th 2020, the employee was informed that her role was at risk of redundancy and that a four-week consultation period would commence from that date.  Hers was one of 12 jobs selected for redundancy as part of this re-structure, bringing the employee numbers to 46.  On August 13th, she wrote to the HR manager saying that she understood that the consultation period ended the next day, August 14th, “and my end date would be a month from now.  I am just confirming my redundancy, no need to continue on with a consultation.”  On August 17th, the employee was formally notified that her job would be made redundant on September 17th.  Her redundancy terms comprised her statutory entitlement plus 4.5 weeks’ enhanced payment, plus a sum of €2,500.

It is the employer’s case that, following her redundancy, the majority of the employee’s responsibilities ceased to exist.  Mr Dwyer said that the employee trained some of the remaining employees on some aspects of her job, but that for the most part, this proved to be unnecessary.

In February 2021, the parent company decided to close the business entirely.

Conclusion

In her complaint to the WRC, the employee stated that she was dissatisfied with how the employer carried out an investigation into her complaint of bullying and harassment.  Of the two colleagues that she raised grievances against, one left during the investigation and the second was made redundant in November 2020.

Mr Dwyer said that this hearing at the WRC should not replicate the investigation into the employee’s original grievances, but should focus on the processes and procedures utilised by the company in handling these matters and the rationale put forward by NSM as the basis for her findings in her review.  It is the employer’s case that the grievances were examined in accordance with their grievance procedure and in line with the guidelines in the Code of Practice on Grievance and Disciplinary Procedures set out in Statutory Instrument 146 of 2000.  When the grievance was not resolved at an early stage, it progressed to an investigation and then to a review by a more senior manager, NSM.  The employee was offered the opportunity to be represented at each stage.

Mr Dwyer accepted that there was a delay in reaching a conclusion, but that this was the result of the Covid pandemic and the lay-offs during early and mid-2020.  He asked me to find that the grievance was thoroughly investigated in accordance with the employer’s grievance policy and in accordance with natural justice and fair procedures.

Complaints for Investigation

Over Christmas 2019, the employee came into possession of a voice recording in which she heard a manager, “the protagonist,” encouraging her staff to treat the employee’s sister in a way that would result in her resigning from her job.  On January 23rd 2020, she had a meeting with her own line manager and a member of the HR team at which she presented them with the voice recording.  On the same day, she was in the canteen when a staff member made offensive sexual comments about a colleague.  This was followed by a reference to the employee as “a fat lazy bitch.”  These are the complaints that were the subject of an investigation meeting on February 13th 2020.  Two years previously, the employee made a complaint about the conduct of the protagonist and what she described as “her campaign of bullying.”  Arising from this, the protagonist was spoken to by the HR manager and the employer’s position is that the matter was “dealt with.”

The employee’s dispute with her former employer is her contention that the investigation into her complaint of bullying was flawed and that it resulted in an outcome that was irrational and unfair.  She asks that I review the managers’ investigations of her grievance based on the information she provided to them at the time.  In this regard, she is at one with the employer’s position, who also asked that I focus my investigation on the process that resulted in the report of February 28th 2020 and the appeal outcome of October 1st 2020.  My role therefore, is not to re-open the investigation, but to consider how it was handled by the employer.

In complaints like this one, where there is an allegation of mishandling by an employer of complaints of bullying and harassment, the Labour Court has established that, to present an adequate defence, the employer must demonstrate that,

1.              A comprehensive Dignity at Work Policy is in place that reflects the principles set out in the Health and Safety Authority’s Code of Practice on the Prevention of Bullying in the Workplace;

2.              That the policy is effectively communicated to all staff through training, especially of managers;

3.              That complaints of bullying and harassment are fully investigated.

Bullying

A new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (Statutory Instrument 674/2020) was published on January 5th 2021.  The definition of bullying is the same as the definition in the previous Code, under Statutory Instrument 17/2002:  

“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual‘s right to dignity at work.  An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying”.

In his report of February 28th 2020, Mr AB considered the two incidents that the employee complained about.  The notes of Mr AB’s meeting with the employee show that he found the expression “get rid of her” on the voicemail recording was inappropriate, and that it was claimed that the phrase was used a lot in jest.  He concluded that,

“Inappropriate language is heard but this appears to be a regular occurrence in the office which has been established throughout the investigation, this is unacceptable. (sic)”

Considering the sexually offensive comments by one employee about another, Mr AB stated:

“I acknowledge that the language used by another team member on the 23rd January 2020 which you reported to be totally inappropriate & unacceptable, however, I understand this is a very common occurrence.”

Overall, Mr AB concluded that there was “no evidence of a bullying culture” in the workplace but that sometimes “conversations may be deemed as inappropriate.”  Considering the definition of bullying, as “repeated inappropriate behaviour” against his finding that totally inappropriate and unacceptable behaviour “is a very common occurrence,” it is bizarre and entirely contradictory that Mr AB failed to reach a conclusion that what was going on was bullying.  The fact that his findings were upheld by a more senior manager in October 2020 is even more disturbing. 

The Process that Resulted in this Outcome

When she presented the voicemail recording to her manager and a member of the HR team in January 2020, the employee said that their response was hostile.  She said that the focus of the managers’ concerns was on who sent her the recording and not on what was heard on the recording.  This approach was repeated at her meeting with Mr AB on February 13th 2020, as is evidenced by his conclusion that, although inappropriate language is heard, he could not confirm that “this is an actual voice message recording from a mobile phone as the person who received the message was not identified.”  If the authenticity of the recording was a concern, it occurs to me that all that was required was to consult the person who was heard saying, “get rid of her.”  It is difficult to understand why this simple enquiry was not carried out.

The employee said that she was concerned that Mr AB and the national sales manager, NSM, who carried out the investigations into her complaints were not independent.  In a company employing less than 60 people with a small executive team, it’s easy to understand why she might have these concerns.  As a subsidiary of a large multinational, a more objective outcome might have resulted if someone from the parent company or an external professional had been appointed to carry out the initial investigation.  I am convinced that if the investigation had been carried out by a more independent person, the outcome would have been different. 

The employee was also concerned that neither Mr AB or NSM interviewed her sister, who was the subject of the voice recording, or two former employees who she said would provide evidence of the conduct of the protagonist.  From her submission, I understand that the employee’s sister raised concerns previously about how she was treated by the protagonist and that one of the former employees initiated legal proceedings regarding her treatment.  I find that no barrier existed to consulting with these three individuals and it seems to me that the failure of the investigating managers to hear their side of the story resulted in a limited and erroneous outcome.

The notes of the appeal meeting with NSM on September 14th 2020 show that she asked the employee, “what is your desired outcome?”  When she said that she felt that the initial investigation was badly handled, NSM asked, “What would you like to see happen?”  The employee responded that she would like to see the protagonist demoted.

I find these questions very strange, as they indicate that at least one objective of the appeal hearing was to mollify the person making the complaint.  A complainant is not entitled to select the outcome to an investigation about bullying.  The employer must make findings and take any necessary actions in line with their policy on bullying and harassment.  I find it even more strange that NSM replied, “She does need to be punished,” because, at the end of his report of February 2020, Mr AB stated that he didn’t believe “there is enough to warrant disciplinary action to be taken…”  In October 2020, NSM upheld these findings.

On March 11th 2020, the employee submitted a formal appeal against the findings in Mr AB’s report.  Four months later, when she was informed that her job would be made redundant, a meeting had not been arranged to hear her appeal.  A meeting finally happened on September 14th 2020, the day before she was dismissed.  The employer said that the delay was caused by the Covid pandemic and staff being laid off.  It seems to me that the appeal would not have happened if the employee had not persisted in her request to be heard.  Aside from a short delay which could have been excused by the pandemic, I consider the last-minute scheduling of the employee’s appeal to be disrespectful and an indication that the employer had little interest in hearing what she had to say.

Mr AB’s report of February 2020 concluded with a number of recommendations:

§    Employees were to attend refresher sessions on the company’s Code of Conduct and Dignity at Work policies;

§    A mediation session was to be arranged between the employee and the protagonist;

§    Appropriate action was to be taken in accordance with the company’s disciplinary policy.

These recommendations were repeated in NSM’s findings on October 1st 2020, following the hearing of the employee’s appeal.  Apart from an email of November 3rd 2020, in which the managing director reminded employees of their responsibilities under the Code of Conduct and the Dignity at Work policies, no evidence was submitted at the hearing that any of these recommendations were carried out.

Conclusion

In a decision of the High Court in 2011, Sweeney v Ballinteer Community College, IEHC 131, Mr Justice Herbert relied on the provisions of the Health and Safety Act 2005 to ground an employer’s legal duty to provide a workplace where bullying is not tolerated.  In relation to Ms Sweeney, a teacher, he held that her employer owed her,

“a direct duty of care... both at common law and by virtue of the provisions of the Safety, Health & Welfare Act Work 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring.”

While the employee who is the subject of this dispute complained mainly about how others were treated in her workplace, bullying affects not just the direct target of the perpetrator.  The intention of a bully is to incite fear in everyone who witnesses their behaviour, creating an environment that is stressful and where employees focus on not getting on their wrong side.  “Mental injury,” as referred to my Mr Justice Herbert, is not confined to the person who is abused, ridiculed or belittled; it is suffered by others, at varying degrees, who have to have any involvement with the bully and who see what’s going on.

The company’s Dignity at Work policy was not presented at the hearing of this dispute.  In her complaint of January 2020, the employee highlighted one section:

“The company is committed to implementing and promoting measures to protect the dignity of employees and to encourage respect for others at work.  We will do this by creating a work environment free from bullying, harassment and other disrespectful behaviour and by dealing effectively with any complaints of such conduct as they arise.” 

It is my view that the manager who conducted the investigation into this employee’s complaint, and the manager who heard her appeal, failed to understand what bullying is and its effects on the workplace.  It seems to me that the two managers either had not been trained on how to implement the policy, or they disregarded their responsibility “to take reasonable care” to follow the company’s objective “to protect the dignity of employees and to encourage respect for others at work.”  In their investigation, they failed to listen properly to what the employee was telling them about what she witnessed.  They dismissed her concerns, firstly on a technicality related to the source of the voice recording, and secondly, on the basis that there was “a culture of straight talking and open discussion in relation to general news topics.”  The conclusion they arrived at and their failure to name the “inappropriate conversations” as bullying trivialised perverse and dysfunctional conduct and heaped further disrespect on this employee and on the victims of the bullies.

The focus of this investigation is on the process that resulted in the reports of February 28th and October 1st 2020 and it is not my role to consider the rationale for the sequencing of the redundancies.  It is not unreasonable for the employee to feel that, as hers was one of the first jobs to be made redundant, that this might have been related to her decision, as she said in her appeal letter, not to let the matter lie.

I recommend that the parent company of this closed subsidiary business gives some consideration to the findings in this recommendation, and that someone in authority examines what occurred in the two to three years before January 2020, so that steps can be taken to ensure that the conduct that was tolerated then is no longer tolerated.   No monetary award can compensate for the distress caused by working in an environment where bullying conduct is ignored and rather, becomes a normal feature of working life.  However, as this employee was made redundant, the only redress that I can recommend is financial.  I therefore recommend that the employer pays the employee €10,000 in compensation for their failure to carry out a thorough and fair investigation into the grievances she submitted in January 2020.  I note that the employer was a subsidiary of a global multinational and that its closure will not be an impediment to this compensation being paid.       

Investigation of a complaint of bullying