Complainant

Respondent

Anonymised Parties

A Retail Employee

A Retail Shop

Act

Dispute Reference No.

Date of Receipt

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

CA-00042141-001

25/01/2021

A complaint was made against the complainant by a co-worker and it was referred for external investigation.

The complainant had only twelve week’s service and made a complaint against her as the Covid officer for her encouragement of the wearing of face masks.

The complainant was accused of bullying and unfair treatment, but says she also faced allegations of unfair treatment.

The investigation was completed she was completely exonerated.

The complaint arises because of what she says was a lack of support from her manager.

The complainant has worked for the respondent for over twenty years.  She manages the Deli and oversees the running of the bakery and coffee shop.

She is also responsible for overseeing that the requirements of the food safety management system, HACCP are met in the three areas under her supervision.

Her grievance is that she was asked to participate in the investigation but when she asked the owner for help he declined.  She repeated that she needed some help in dealing with the staff member who had made the complaints as she was verbally abusing the complainant and making her job very difficult.

Again, neither the owner or her manager offered support and she was left to represent the company and deal with all of this by herself.

This had an adverse impact on her health and she had to take sick leave due to stress. Her salary was stopped while she was on leave.

In the event, the investigation found that she had merely been carrying out her duties, so this also makes her wonder why the respondent could not have supported her during the process.

One incident arose where the manager witnessed the locker room being defaced. When questioned by the investigator she asked for the manager to provide evidence to the investigator he replied, "I am not getting involved, I have to remain impartial as I am manager".  

She wants a resolution and return to employment but until the company reevaluate the support they offered she feels her job would be too challenging. The person who made the complaint has since left the business.

Since this investigation has started the employee in question has since left the company.

She feels disappointed that after her long service she did not receive better support.

The owner of the business attended and confirmed the basis facts of what happened.

However, he said that he could not intervene in the manner sought by the complainant as it was an independent investigation which had to let run its course.

Also, either he, or the manager might have had to exercise a role in respect of any proceedings that might arise on foot of the investigation and their impartiality would be affected if that had played a role in one side of the process.

The owner said he held the complainant in the very highest regard as an employee and was very keen to see her return to work as soon as she was well enough to do so.

He was willing to enter into any process with which she felt comfortable in order to ease her back into employment.

It is easy to understand and sympathise with the complainant’s distress and sense of being let down in this case.

She felt that once the investigation proceedings were triggered against her that the business would ‘rally around’ and actively stand with her against the allegations.

She made it clear at the hearing that this was the issue.

It was not the failure to facilitate her with a companion support person as is provided for in the Code of Practice on Grievance and Discipline (SI146/2000). She saw herself as having acted in her capacity as a member of the management team and that, in her moment of need, that should have been recognised and they should essentially have taken her side.

This is entirely understandable in the case of a person not familiar with the requirements of workplace HR practice. The position taken by the owner and manager on this point is, sadly for her, well founded in fair procedure and natural justice principles and so her complaint on this point is misconceived.

In fairness to her, the escalation of what was a relatively trivial complaint to the level of an external investigation seems somewhat disproportionate. I do not see much reason on the facts as presented why this should not have been dealt with expeditiously by the local manager and thereby avoid the distress to which the complainant was subjected.

It may be that the pendulum has swung too far in that regard, and business owners, fearful of some unspecified legal sanction, are engaging in unnecessarily defensive practice.

The requirements of fair procedure are sometimes described as ‘elastic’ in that regard, and while they must always be fair, and this may not be used as a basis for shortcuts or to undermine the basic requirements of fairness, some practical consideration must be given to the reality of the workplace.

In Mooney v An Post [1994] E.L.R. 103 the Court, per Keane J. put the matter as follows,

‘The nemo iudex requirement cannot be literally applied to every employer confronted with a decision as to whether or not he should dismiss a particular employee. If it were, an employer could never dismiss an employee, since he would always be an interested party in the decision.”

While that case concerned the more serious issue of a dismissal employers need to be proportionate in their application of the principles; they must apply them but do so having regard to the facts of each case.

Any allegation against a person is a serious matter and it will often, as it did in this case have serious adverse impact, not all of which will dissipate when the matter is concluded to their advantage, as happened here.

The experience of the process itself can be traumatic and often unnecessarily so.

Specifically, the obligation to investigate merely requires that an employer undertake a fair and diligent inquiry proportionate to the issues at stake. I am at a complete loss to understand why external consultants were required to investigate the low-level complaints in this case, and at even a greater loss to know how they managed to produce a seventeen-page report on them.

There is some suggestion here of a failure of responsibility by the respondent to do something that falls well within the normal scope of its role. Of course, having done so they could not still not have met the complainant’s request for the type of support she sought.

But the question remains whether the obligation to process the complaint required the degree of escalation that took place.

It is no surprise that the complainant experienced the level of distress described in her complaint as she was subjected to a quite unnecessary ordeal that could have been avoided by a low level, in-house inquiry.

More effective screening of complaints can also play a role in determining whether there is a basis to them and if so what the proportionate response should be. There may be a need for training here.

This should of course include amicable dispute resolution option; indeed, there should be greater emphasis on this method of dispute resolution and it may be helpful that parties attend an mediation information session with a properly qualified mediation professional.

All of that said, I note the very considerable good will on the part of the respondent to the complainant and to facilitating her return to work.  He offered some imaginative options at the hearing for doing so.   

While he acted in good faith in relation to the investigation, even allowing for the fact that the specific support she sought was not possible, in my view the complainant was subjected to an unnecessarily formal and arduous process for which she was given insufficient preparation and support.

For that reason, while I recommend that the respondent (if he has not already done so) pursue the offer to ease the complainant back into the workplace, I also recommend he reviews his policy and practice in relation to the management of low-level grievances.

I also recommend an award of compensation to the complainant arising from the observations above.

I do not uphold the specific complaint that the respondent should have acted for or with the complainant in the course of the investigate process.

However, I make the following three recommendations.

I recommend that the complainant be paid €3,500 for the reasons set out above.

I recommend that the respondent (if he has not already done so) pursue the offer to ease the complainant back into the workplace.

I also recommend he reviews his policy and practice, and any additional training requirements he may need to avail of in relation to the management and processing of low-level grievances.

Workplace investigations, fair procedure.