Complainant

Respondent

Anonymised Parties

A Worker

A Development Company

Representatives

Aine Feeney SIPTU Workers Rights Centre

 The respondent did not attend and was not represented at the hearing

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-00035976-001

01/05/2020

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

CA-00035976-002

01/05/2020

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

CA-00035976-003

01/05/2020

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

CA-00035999-001

05/05/2020

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

CA-00035999-002

05/05/2020

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

CA-00035999-003

05/05/2020

INTRODUCTION

1.1               The case before you today has been referred on behalf of SIPTU  (the Complainant) who commenced employment with the Respondent, on the 4th July, 2016, as E Project Officer and then Digital Skills Co-ordinator from 1st January, 2017. From that date the complainant reported into various Managers without event, however from March 2019 his reporting structure changed, and he was directed to report into Ms.A. From the commencement of this reporting arrangement, he found himself the subject of a concerted pattern of sustained scrutiny, necessitating the Complainant lodging a Grievance against his line manager in July, 2019 and subsequently being out of work on work related stress leave in early 2020. On his return he was presented with allegations which resulted in the Company proceeding with a Disciplinary Hearing, following a flawed “Investigation” which said process was only abandoned on the referral of the matter to the Workplace Relations Commission, for failure of the Company to follow their own procedure.

1.2               ISSUE

The complainant contends that he was not afforded access to due process and fair procedure, that the Respondent Company failed to comply with their own procedures and that he was subjected to a campaign of harassment, bullying and victimisation by his line manager as a result of a Grievance which he lodged on the 5th July, 2019.

.

2.              BACKROUND

2.1               In March 2019 a Manager, Ms.A was appointed to the complainant’s area of operations. From the outset the complainant herein felt undermined and micromanaged on a daily basis while carrying out his role on a project which he had helped initiate in 2016.

2.2               The Complainant raised the issues informally, however due to the fact that same remained unaddressed he escalated the matter and lodged a formal grievance in July 2019. Despite the grievance process commencing, the behaviour continued to such an extent that on the 4th February, 2020 he was certified unfit for work as a result of work related stress.

2.3               On his return on the 24th February, 2020 the complainant set about catching up on the backlog of work that had accumulated in his absence. On the 5th March, 2020[1] correspondence issued to the complainant requesting him to attend an Investigation Meeting on the 11th March, 2020[2], however the complainant did not receive the correspondence by registered post. A meeting took place on the 11th March, 2020 purporting to be an Investigation meeting, however the Complainant had not been furnished with any Policy under which the investigation was being conducted and while the correspondence of the 5th March, 2020 advised that he could have a work colleague in attendance, he was not facilitated in this regard in the course of the meeting. Further the meeting did not address all of the issues as set out in the correspondence of the 5th March, 2020. On completion of the meeting no advice was given with regard to the next steps and indeed no opportunity was provided to the complainant to review the minutes which issued thereafter.

2.4               On the 2nd of April 2020[3] the complainant herein received correspondence which was left on his desk directing him to attend a disciplinary hearing, which said correspondence was dated the 1st of April 2020 and was from the operations manager MrX. The proposed disciplinary hearing was scheduled to take place on the 7th of April 2020. The complainant herein immediately contacted his Trade Union who communicated with MrX on the 3rd of April 2020[4] indicating that it was wholly inappropriate that he would conduct such a hearing as it was clear from the documents contained with the correspondence that he had participated in the process to date and not alone that, the process was prejudiced but there was an infringement of the complainant’s right to due process and natural justice. Further it should be noted that all staff are operating under the regulations issued in accordance with the Health (Preservation and Protection and other emergency measures in public interest) Act 2020 and as such it was extraordinary that this Hearing would be scheduled at such short notice. Thereafter the complainant’s representative requested an independent party, to be agreed, to be appointed to deal with the hearing at the appropriate time. The complainant’s representative then went on to confirm that in the event that the Hearing proceeded that that correspondence would be exhibited and relied upon in any application to the Workplace Relations Commission.

2.5               On the 5th of April 2020[5] M.X corresponded with the complainant‘s representative and confirmed that he was taking advice on the matter and that he would be in contact. Subsequently on the 7th of April[6] he corresponded again confirmed that the company would reissue a new date and that the representations of the Advocate from the Trade Union would be taken on board. Thereafter correspondence was received by the complainant from his line manager Ms.A dated the 8th April, 2020[7] directing him to attend an Investigation Meeting. This correspondence reference to 3 matters which had been referred to in the previous invitation to the Disciplinary Hearing and went on to say “Please disregard the letter sent to you on the 1st April, 2020, as this was sent as an admin error”

2.6               The complainant then corresponded with his line manager to raise his concerns due to the fact that he had a live Grievance against her and under cover of correspondence of the 14th April, 2020 Ms.A responded and confirmed that the Investigation Meeting would proceed.

2.7               The complainant’s trade union official then corresponded with Mr.X on the 16th April, 2020[8] seeking clarification again on the matter. Various correspondence crossed between the parties and it was confirmed that the correspondence vis a vis the proposed disciplinary hearing be deemed null-and void and that the investigation meeting would now take place with the appropriate line manager Ms.A.

2.8               The complainant‘s representative then corresponded with Ms.A  on the 16th April, 2020[9] outlining the deficiencies in the process to date and again seeking that an independent party would deal with the process.  This correspondence went unaddressed by Ms.A and it is clear that the servants and agents of the Company decided to proceed with the matter despite the clear and flagrant breach of due process.

2.9               An investigation meeting took place on the 17th of April 2020 and draft minutes issued on the 22nd April, 2020[10]. On the 24th April, 2020[11] the Complainants Representative reverted with revised minutes per her notes of the Meeting. On the 29th April, 2020[12] Ms.A  reverted refusing to agree to any of the revisions of the draft minutes and subsequently the complainants representative corresponded on the 1st May, 2020[13] confirming that in order to progress matters a further meeting should be convened to address the issues in dispute.

2.10           On the 6th May, 2020[14] Ms.A corresponded to confirm agreement to a further meeting on the matter. However she went further to outline specifics with regard to matters discussed and indeed indicated at the end of the correspondence that she had taken a view in relation to matters, which were still under investigation from the perspective of the Complainant. The Complainants Advocate raised this issue with Ms. A on the 7th May, 2020[15].

2.11           Thereafter communication ceased in respect of the matter from the Company, until on the 22nd May, 2020 Ms.A  corresponded to confirm that she was willing to “finalise and end this disciplinary process”. On the 28th May, 2020 the complainant’s Advocate corresponded to outline the deficiencies again in the matter and requesting that Ms.A would confirm that she had incorrectly referred to a disciplinary process and seeking confirmation that the “Investigation” was entirely at an end. On the 4th June, 2020[16] correspondence issued from Ms.A and while it did not substantively address the issues raised, it confirmed that the matter was closed.

2.12           On the 13th August, 2020[17] correspondence issued from the Respondent through Ms.A referencing the within referral and indicating that the complainant  had not exhausted the internal procedures. It should be noted that the Complainant had availed of the Grievance procedure, as previously outlined wherein he had lodged a Grievance in July, 2019 and this remains under investigation. Further the correspondence of the 13th August, 2020 again makes reference to “decided  not to proceed with disciplinary action” which affirms the fact that the Respondent Company have not alone failed to comply with their own procedure but effectively attempted to excuse their wilful failure to follow due process and continue to fail to understand the process contained within their own Handbook and an individual’s right to due process. This is affirmed by the fact that they have objected to the investigation of the matter by you Adjudicator, outside of the prescribed guidelines in this regard.

UNION / LEGAL ARGUMENTS

2.13           Adjudicator we contend that the foregoing is unacceptable behaviour from an Employer of the size and import as the Respondent. Further we contend that the Respondent has available to it resources far in excess of many employers with regard to Policies on which it can rely and indeed with regard to Personnel who could be charged to investigate the matter and deal with same, in the interests of the Workers it employs. This is a clear breach of fair procedures and the Complainants right to natural justice.

2.14           The provisions of S.I 146/2000 are well established and discussed.

“This corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees:

This was never afforded to the Complainant herein.

2.15           The Code Of Practice on Grievance and Disciplinary Procedures is clear that “Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.” It is clear that this the Respondent failed to apply not alone their own procedures but to observe best practice in the area in this case.

2.16           In the Case of A Nurse Manager and A Hospital ADJ-00013782 the Adjudication Officer stated “I believe that it is a shocking indictment of the Respondent that such complaints are dealt with in such a haphazard and laborious manner” and went on to recommend that the complaint be addressed and further awarded the Complainant Compensation in the sum of €5,000 for the unreasonable delay in processing the complaint. We say that the failure of the Respondent to follow their own procedure in similar circumstances where they dealt with the matter in such a haphazard fashion could have resulted in significant consequences for the Complainant herein.

2.17           In the Case of A Worker and the HSE ADJ- 00018898 the Labour Court noted that it “arises from a breach by the employer of their own policy”, as we would submit is the position in the within case. In particular the Respondent failed to comply with the terms of its own procedure with regard to the handling of an Investigation, which said investigation could have had significant disciplinary consequences. 

2.18           Compensation

Further in the Case of A Worker and the HSE ADJ- 00018898 the Labour Court awarded €15,000 in affirming that there was a legitimate Grievance which remained unaddressed contrary to their own procedure.

3.              CONCLUSION

3.1               The Complainant herein was a valued member of Staff of the Respondent Company and developed and executed a programme, which successfully ran from the date of inception in 2016. It is submitted that the Complainant was deliberately undermined by his new line Manager from the date of her appointment to the position in March 2019. It is further submitted that despite the fact that the Complainant lodged a Grievance in accordance with the Staff Handbook, the Respondents servant and agent Ms.A  continued in her pursuit of the Complainant cumulating in the commencement of a “disciplinary process” in March, 2020. When the Respondent Company realised that they had failed to deal with the matter in accordance with their own procedure and only after repeated interventions on behalf of the Complainant, they terminated same, however, they subsequently recommenced under the guise of a new investigation of the complainant, which said process was also entirely flawed from the outset. This second process was again only abandoned after the matter had been referred to the Workplace relations Commission and after robust representations on behalf of the Complainant. The entire process took a considerable toll on the Complainant herein resulting in a period of work related stress leave and ultimately leading to him seeking alternative employment, which he secured and commenced on the 30th September, 2020.

3.2               We are therefore seeking that the Respondent Company engage in training for all staff, to include management, on their own procedures and the correct applicability of same and order further recommendation as you deem appropriate Adjudicator.

We are seeking compensation for the Complainant herein, for the distress that this entire matter has caused him and continues to cause him, as a result of the failure of the Respondent to follow its own procedures, and for the repeated breach of its own policies.

We thank you for your time and attention and look forward to a favourable decision.

The claimant clarified the dates of his sick leave and contended that since the appointment of Ms.A he was being micromanaged at work and found the work environment intolerable.He stated that ultimately he had no option but to seek alternative employment and took up alternative employment in September 2020.

In replying to the post hearing submission from the respondent the claimant asserted that he was only given 2 working days to prepare for the 7th.April meeting , and that he had never being advised that the invitation to attend the meeting was left on his desk – this coincided with the first lockdown when he was working from home.He took issue with what he believed was the massaging of figures by the respondent to attract funding .He contended that the assignment of Ms.A to undertake an investigation in circumstances where he had already submitted a grievance in relation to her was inappropriate .The claimant vehemently rejected the respondent’s contention that he had suffered no detriment when “the flawed process based on fallacious arguments had, and still does , taken a huge mental and physical toll on me “ – ultimately culminating him in seeking out employment opportunities elsewhere. The claimant denied that he had ever been encouraged by the respondent to invoke the grievance procedure. The claimant submitted that the respondent had already conceded that the procedures were flawed when they submitted correspondence from their HR advisers to the WRC which referenced “ a procedural flaw”.

 The respondent did not attend and was not represented at the hearing. The respondent was put on notice of the claimant’s referral to the WRC  on the 22nd.July 2020 and was given 21 days to object to the hearing proceeding. The respondent objected to an investigation of the complaint under Section 13 of the Industrial Relations Act 1969 on the 21st.August 2020 but the objection was out of time and accordingly the case was scheduled for hearing on the  1st.Feb. 2021.In the letter of objection , the respondent attached a communication to the claimant’s union representative in which the respondent refers to feeling “ as though the complainant has not exhausted  the internal procedures  and hope and encourage the complainant to utilise internal procedures and engage at a local level in the hope of finding a resolution for both parties and maintaining a health working relationship”. The correspondence set out a chronology of the correspondence exchanged between the respondent and the union which included confirmation that the respondent was not proceeding with disciplinary action against the claimant and that issues would be dealt with informally. The provisions of SI146/2000 were invoked and it was asserted that the complaint was not well founded.

 The respondent furnished the following post hearing submission to the WRC on the 11th.Feb. 2021:

 “In respect of the issues lodged within the Claimant’s claim paper – he failed to attempt to resolve these issues at a local level and failed to exhaust the internal procedure and this remains the case despite our encouragement of same. Please find attached Appendix 1 (CA-00035976) - Email sent to the WRC in August and Appendix 2 (Private & Confidential)- Email sent to SIPTU on 14th August which contained correspondence between the respondent and the claimant’s representative   explaining this.

Further, in respect of the issues brought by way of their submission received last week, these are prematurely lodged and remain to be currently ongoing, the Claimant has referenced theses grievances and issues, which have been investigated and are currently under appeal by an external human resources consultant, HR Solutions. The appeal investigation has not been concluded and there has been no outcome issued.

Moreover, I would also like to point out that the Claimant’s submission 1.1 and 1.2 is inaccurate. The disciplinary process has various steps; the initial meetings by the line manager to resolve the issues and gather relevant information around allegations which have come to light. However, a clerical error intervened in that the Claimant’s letter of invitation to the formal investigation meeting was worded as a “disciplinary” hearing. See appendix 3 (ROS183 – Confidential) which shows this was a genuine admin error. This error was not the fault of the line manager, which is the basis of Claimant’s case for harassment, as the letter of invitation contained a mere error and was in no way deliberate. Once the matter was brought to our attention it was resolved imminently. Secondly, the investigation meeting concluded that the matter was resolved, therefore no disciplinary action was taken and was ended on 22nd May, see appendix 4 (FW: Private & Confidential) and extract below which shows the disciplinary process was finalised. Withstanding the above, no disciplinary sanction was imposed, therefore, the Claimant suffered no detriment as a result of said clerical error. Further, the respondent did not receive notification of the within complaints until 22nd July 2020.

“As the alleged allegations were mainly down to the training of Participants and the claimant’s alleged lack of response to various e-mails from Management, I am willing to finalise and end this disciplinary process and move forward with a 1-2-1 meeting with the claimant and myself to discuss expectations followed by a team meeting to discuss the Co-ordinators plan to train these participants and other trainees required in order to achieve the target.”

 By way of conclusion of our submission, the issues raised by the Claimant in respect of the clerical error of branding a formal investigation to be a formal disciplinary, we contend that the Claimant suffered no detriment as a result and the issues was rectified imminently, once RLP were made aware. The Claimant further declined to resolve the issues on a local level at the first instance, the internal grievance procedure was never invoked by the Claimant in respect of same despite our encouragement and we believe the utilisation of the internal procedures would have been more beneficial in the first instance.

Moreover, on the issues raised within the Claimant’s submission there are currently ongoing grievances in which remain under investigation by an external, impartial HR Consultant, to this stance it remains our positions that issues in respect of this grievance are prematurely lodged, before the matter has been concluded.

The respondent remain to be an equal opportunity Employer, who promote the utilisation of their internal procedures in the first instance in an attempt to resolve and maintain the employment relationship. As demonstrated should any issues occur and human error intervene, we strive to rectify same, so as to cause no detriment to our employees.

I have reviewed the evidence presented at the hearing and noted  the position set out by   the complainant and his representative .While the respondent has asserted that the claimant has not exhausted internal procedures , the claimant is adamant that internal procedures were exhausted with respect to the chronology of meetings and investigations initiated following the claimant’s return from stress related illness at the end of Feb. 2020.The claimant’s representative has clarified that an investigation into the complainant’s allegations of bullying against Ms.A has still not concluded – the outcome of an appeal is awaited and confirmed that this is not currently before the WRC. The referrals relating to bullying and harassment procedures and disciplinary sanctions have  been withdrawn.

In such circumstances I cannot accept the respondent’s assertion that the claimant has failed to exhaust internal procedures as this specific compliant relates to the initiation of proceedings against the claimant following his return from sick leave in Feb. 2020.I have examined  the chronology of events and meetings dealing with this matter  and noted that this process culminated in a meeting on the 17th.April 2020  .I have  noted on the basis of the evidence of the claimant’s representative and the documentation submitted into evidence that the parties were unable to agree the minutes of the meeting.It is apparent from the evidence of the claimant and his representative that trust between the parties had irretrievably  broken down at this point  and in such circumstances it was not unreasonable for the claimant or his representative to conclude that they could not take the matter further through internal processes and consequently referred the matter to the WRC.

I note that the respondent acknowledged their “clerical error” and ultimately closed off the investigation and I  have taken account of  the respondent’s assertion in their correspondence to the WRC of the 29th.Jan. 2021 that the complainant was a highly regarded employee.

 On the basis of the uncontested submissions presented  at the hearing I am satisfied that the claimant had a legitimate grievance with respect to the initiation of disciplinary proceedings by a line manager against whom he had made a formal complaint of infringements of his dignity at work and being undermined  through micromanagement in July 2019.This process was initiated following the claimant’s return from stress related illness  and given the backdrop of the claimant’s complaint against his line manager , it was not unreasonable for him to conclude that a fair and impartial process would not be guaranteed.This took place in circumstances where no evidence was advanced by the respondent to demonstrate that an informal counselling process had failed to result in a required performance improvement as set out in the company’s own procedures.Matters were compounded  by the classifying  of an investigatory meeting as a disciplinary meeting and added to the claimant’s lack of confidence in the fairness of the process. While this matter was dismissed as a clerical error by the respondent , it  failed to assuage the claimant’s fears about the fairness of the process – these fears were again exacerbated by the proposal for Mr.X to undertake the investigation in circumstances  where he already featured as a witness to a number of issues in dispute between the parties – as highlighted in the minutes of meetings submitted by the respondent . In all of the circumstances I find the claimant had a legitimate grievance about being denied his rights to natural justice and I find the respondent demonstrated poor judgement and an abject failure in their duty of care to the claimant by initiating this process following his return from certified stress related illness. Accordingly, I am satisfied that the claimant did suffer detriment and consequently I am upholding the complaint.

I recommend in full and final settlement of this dispute that the respondent pay the claimant €7,500 compensation within 4 weeks of the date of this recommendation.

Lack of fair procedures