Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Barnaba Dorda SIPTU

 N/A

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-00035351-001

19/03/2020

In his complaint to the WRC, the worker raised a number of grievances which he claimed the employer did not address. These included a failure by the employer to investigate a bullying complaint that he made, a reduction in his overtime payments as well as a failure to make him aware of certain documents which were on his personnel file.

The grievances raised by the Worker related to three matters

1.       That he was bullied on 5 occasions from 12th April to 4th May 2016 when a supervisor drove over his work and that these allegations were not investigated by the Employer.

2.       That he was denied overtime between February 2016 and September 2016 and therefore had his pay reduced in this period

3.       That his personnel file contained a document which included a number of allegations made against him and that this was not presented to him until he obtained a copy of it under the FOI request. He further alleged that there was a petition signed by 17 workers on his file seeking his removal from a work location and claimed that he was not provided with an unredacted copy of this.

1.       The Employer stated that the bullying allegations were put on hold as a result of a separate investigation into a protected disclosure made by the Worker and that a duty of care was demonstrated by transferring the complainant to a different work location pending the investigation.

2.       The Employer stated that the overtime was optional and was neither regular or rostered and therefore could not be categorised as loss of earnings.

3.       The Employer stated that the document which contained allegations against the Worker has now been removed from his file and is not aware of any petition demanding his removal any work location.

I note that the worker has now been shown a copy of his personnel file, is fully aware of the contents of same and that any allegations made against him have been removed. Accordingly, I do not make any finding in relation to this aspect of the complaint.

I note that the overtime was optional and was not regular or rostered and do not therefore make any finding in relation to this aspect of the complaint.

In relation to the bullying complaint, while I note the employer’s assertion that the failure to investigate the allegations when they were made was attributable to the length of time that it took to investigate the protected disclosure, there was no cogent reason presented to me to explain why the allegations were not investigated in 2018 following the conclusion of the protected disclosure investigation.

In addition, I note the employer’s view that there is little to be gained by commencing the bullying investigation at this stage given that the alleged perpetrator and a number of the witnesses involved have retired. It would therefore be difficult to secure their co-operation and even if the allegations were upheld, there is little that the employer could do in terms of sanctions.

I also note that the failure to investigate the bullying complaint is not solely attributable to the employer as neither the worker nor his representatives appear to press the matter.  Specifically, while the complainant’s union wrote to the employer on 21st November 2018 seeking to have the bullying complaint investigated following the conclusion of the protected disclosure investigation, they did not follow up until over a year later on 6th December 2019.

I accept the employer’s contention that there is little to be gained at this stage in commencing the investigation into the bullying allegations given the retirement of the alleged perpetrator as well as many of the witnesses involved and also note that the allegations refer to events which occurred almost five years ago.

I also note the recommendation of the Labour Court in the matter of National Museum of Ireland vs A Worker (AD1184) which found that “Given the amount of time that has elapsed since the complaint was first made,it is now impractical to address the original complaint”.

I therefore find that the worker should be compensated for the employer’s failure to carry out the investigation. In deciding on an appropriate amount, I note that the alleged bullying occurred over a short period of time, namely less than a month, that the allegations made were at the less serious end of the scale and that that the worker must take some responsibility for the delay in progressing the matter. Accordingly, I recommend that the appropriate compensation payable to the worker at €3,500.00.

Failure to investigate;