Complainant

Respondent

Anonymised Parties

A bus driver

A passenger transport company

Representatives

Shonagh Byrne SIPTU

Michael McGrath ; Recommendation to issue to cases@ibec.ie

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-00041977-001

14/01/2021

The employee commenced employment with the employer on 01 June 1997 as a Bus Driver.

This complaint was received by the Workplace Relations Commission on 14th January 2021.

The employee is appealing the outcome of the Grievance process into his complaint dated 4th September 2020 on the following grounds:

1.       The company did not follow their own procedures in dealing with the complaint

2.       There was no clear explanation given as to why the complaint was not dealt with under the Bullying & Harassment procedures

3.       The process was delayed

4.       The employee was not provided with all of the witness statements

5.       There was no appeal allowed of the outcome

6.       The entire process has caused the employee stress and upset

Background.

The employee has been employed as a Bus Driver since 1997.

On 4th September 2020 an incident occurred where the employee experienced      aggressive behaviour from another colleague.

The employee verbally reported the incident to the Inspector on duty NS and thenmade awritten statement toManagementon7th September.

On 10th September local SIPTU representatives sought an update on how the complaint would be dealt with. They were advised that witness statements would have to be taken and that the alleged perpetrator was out sick. (The other colleague was out until 21/9)

On 24th September local Representatives again sought an update as no progress had been made. SIPTU Shop Stewards were then told the matter had been referred to Head Office

On 15th October some 41 days after the incident had occurred local shop stewards again looked for an update as the matter had been ongoing for a considerable amount of time. They were advised that the matter would be dealt with under the Grievance procedure and was not being considered bullying. There was no explanation given to the Shop Stewards and management would not set down the reasons in writing

On 22nd October the employee received an invitation to attend a meeting to discuss the matter with the Area Manager South who was conducting the investigation.

The meeting was scheduled for 23rd October.

The employee was represented by his SIPTU Shop Steward

The Area Manager South confirmed that the Employee Development and Equality Committee had determined that the complaint did not constitute bullying. He further advised he would talk to witnesses and that the alleged perpetrator had also made a complaint.

The employee’s SIPTU rep again requested confirmation from HR regarding the complaint not being considered   bullying, but the Area Manager South confirmed HR would not agree to that.

The employee confirmed that he had previously lodged complaints about the alleged perpetrator but that as there were no witnesses they were not progressed.

The employee also confirmed that in 2019 he had made a complaint but had agreed not to progress it. He also confirmed that there were 4 witnesses to the incident of 4/9 including Inspector NS to whom the employee had verbally reported the incident.

On 3rd November the employee received the outcome report of Area Manager South’s investigation from Area Operations Manager. The letter referenced the right to appeal the outcome.

The outcome report did not uphold the employee’s grievance. It did not include any witness statements or interview notes with the alleged perpetrator. It also did not explain how the decision was reached and what mechanism was used to assess the complaint.

The employee appealed the outcome report and also requested the reasons why the complaint was not processed as Bullying.

The employee spoke to the Employee Relations manager on 18th November and expressed his concerns regarding the process.

On 19th November, the Employee Relations Manager wrote to the employee to confirm that the company would not be allowing his appeal.

SIPTU then referred the complaint to the WRC on 14th January 2021.

Position of the employee making the complaint.

The employee lodged a legitimate complaint in good faith against another staff member on 7th September 2020, following a serious incident on 4th September 2020.

The employee was seeking to have his complaint investigated thoroughly, fairly and in a timely manner in line with fair procedures.

The employee’s complaint was dealt with under the Grievance procedure. (a copy of which was attached to the employee’s submission).

The employee and his local SIPTU representatives have asked on several occasions that the matter be considered bullying as it was not the first incident involving the alleged perpetrator and the employee. It was decided by the employer that the matter would be dealt with as a Grievance. The employee was not provided with an explanation in writing as to why that decision had been taken.

The complaint was lodged on 7th September, but it took over 45 days for the matter to be formally dealt with.

The Area Manager South carried out the Investigation. The Outcome report was issued on 2nd November and provided to the employee on 3rd November 2020.

The employee was not provided with the following documentation:

1.       Copy of minutes from the meeting with the alleged perpetrator.

2.       Copy of witness statements

3.       Explanation on how the decision not to uphold the complaint was reached

The employee then appealed the outcome report.

The Employee Relations Manager advised the employee on 19th November that his appeal would not be allowed.

3.2      Section 1 of the Grievance Policy states

“The purpose of this policy and procedure is to enable employees to express any problems or concerns they may have in relation to their employment and to have them resolved quickly and satisfactorily”

The time frames set down the procedure are as follows:

1.       Stage 1- 2 days

2.       Stage 2 14 days

3.       Stage 3-7 days from date of decision

Meeting within 5 days and decision within 4 days

Thesetime framesset downintheGrievancepolicy were not adheredto.

The employee was not allowed appeal his decision to Human Resources, also in breach of the policy and the principles of natural justice and fair procedures.

The Investigation was not carried out in a thorough; fair and detailed manner and the employee was not provided with all the documentation which he was entitled to receive.

The employee has experienced stress and upset since he lodged his complaint as he has had to continue to work in the same location as the alleged perpetrator, and no measures were taken by the company to address his genuine concerns.

Conclusion.

In recognition of the employee’s complaint he is seeking a recommendation of compensation on the following grounds:

·       The failure of the Company to properly deal with his complaint,

·       The failure to provide a clear explanation as to why the complaint was not progressed under the Dignity at Work policy,

·       Failure to provide necessary documentation

·       For the breach in fair procedures regarding reasonable timeframes

·       For the failure to allow him an appeal.

The employer has not complied with their own procedures or with the Code of Practice on Grievance and Disciplinary Procedures.

The employee is also seeking a letter of apology from the alleged perpetrator.

The within complaint is brought under Section13 of the Industrial Relations Act 1969. The employee submits that “he has a trade dispute that he would like investigated”.

The issue involves an incident between two employees, who both submitted complaints versus the other as a result of the incident. The company investigated the incident fairly. It is the employer’s position that the process followed during the grievance investigation was fair and reasonable and the complaint should be dismissed.

Background to the Employee.

The employee commenced employment with the employer on 01 June 1997 as a Bus Driver. The Complainant is paid weekly a gross pay of €1500 and a net pay of €800.

Background to the Employer.

The Respondent, a designated activity company, limited by shares, registered in Ireland that operate the Public Service Obligation network in the Greater Dublin Area under a contract of services with the National Transport Authority. The network covers a region from Newcastle in County Wicklow to the south, Balbriggan in north County Dublin and Maynooth in County Kildare to the west. The Respondent employs 3,616 people from 73 different countries. The 2,695 drivers operate the fleet of 1010 buses which are all low-floor wheelchair accessible and fully Wi-Fi enabled.

Background to the issue

On 07 September 2020, the Employee delivered by hand to the Respondent his complaint following an incident on 04 September 2020 involving himself and another driver.  Both the Employee and the other driver involved were involved in a previous incident in 2014 which resulted in both drivers being provided with serious disciplinary sanctions as a result of their behaviour in that prior incident.

The Complainant’s account of the day was:

•                     While on his way to collect his bus, the other driver involved stood aggressively in front of him, pushing himself into the Employee’s personal space.

•                     The other driver started to use insulting language.

•                     When getting to the exit door of the garage, the Employee looked behind and saw the other driver having his bag in his hand up in the air directing the swing toward him.

•                     After the incident, the Complainant went and reported the incident verbally to the Depot inspector, as he was feeling threatened by the other driver.

On 13 October 2020, the other driver involved in the exchange, submitted his own complaint to the company against the Employee. He alleged that the Complainant called him names and was aggressive.

After receiving both complaints, the Respondent decided to carry out an investigation into both complaints. The Area Manager South was appointed to investigate the complaints.

On 23 October 2020, a grievance meeting was held. In attendance was the Area Manager South, and a  company note taker. The Complainant was represented by his local SIPTU representative. At the meeting, the Area Manager South advised the meeting was a preliminary investigation to determine if the complaint was to be heard as a grievance or disciplinary case and whether it was a bullying case.

The Employee outlined his account of the incident. In summary, when going to collect his bus, the other driver involved put his head in his face, an exchange of derogatory words took place, followed by the Complainant reporting the situation to the Depot Inspector.   The Area Manager South suggested for the Employee to potentially meet with the other driver to talk through and possibly resolve the  issue however this was not acceptable to the Employee. The Employee stated that he felt his job was on the line because of the issue with the other driver. The Employee named a number of individuals whom he stated witnessed the incident. (names of four other individuals redacted).

The Employee’s representative claimed that the matter may be bullying. The Area Manager South had sought advice from the Employee Development and Equality Executive in the respondent company, who had advised based on the complaints that it did not meet the definition of bullying, as it was a one of incident and not ‘repeated’ behaviour. The Area Manager South did note a previous complaint that was addressed to the  Area Operations Manager, from 2019, which the Employee  explicitly requested him  to not pursue but to record.

As part of the investigation, the Depot Inspector was asked to provide a statement regarding the incident on 04 September 2020 between the Employee and the other driver. The Depot Inspector stated he witnessed both the Employee and the other driver shouting at each other both claiming they were bullied. The other driver said he was going home to see a solicitor. The Employee left for work and agreed to see the manager when back on break. The Area Manager South followed up with the Depot Inspector who confirmed he did not see the commotion and the individuals  were behaving like “school kids”

On 20 September 2020, Mr TW provided a witness testimony in relation to the incident on 04 September submitting that the Employee and the other driver had ‘a go at eachother’ verbally in front of other drivers and then the Depot Inspector tried to calm them down. Mr TW said that he thought the other driver was going to hit the Employee, but he did not rather he knocked over the bin as he lifted his bag.

On 21 September 2020, Mr SH provided a witness testimony in relation to the incident on 04 September. He said the Employee and the other driver exchanged name calling and were shouting at each other. The Area Manager South asked him if he thought when the other driver lifted his bag, he wanted to hit the Employee. Mr SH said “no” and the other driver could have knocked the bin over when lifting the bag over his shoulder.

On 30 October 2020, the Area Manager South spoke to Mr AH whose name was mentioned as a possible witness of the incident on 04 September 2020. Mr AH said he neither saw nor heard what happened.

On 02 November 2020, the Area Manager South informed the Area Operations Manager that having listened to both parties involved and taken witness statements, his decision was to not uphold the Employee’s grievance. The same decision was reached re the other driver’s complaint.

The following day, the Area Operations Manager informed the Complainant of the outcome of the grievance investigation. The Complainant was advised of his right to appeal the decision within 7 days of receipt of the letter.

On 12 November 2020, the Employee Relations Manager invited the Complainant to an appeal meeting in relation to the outcome of a grievance hearing. The meeting was scheduled for 18 November at 2pm and the Complainant was advised of his right to be accompanied by an employee representative.

On 19 November 2020, the Employee Relations Manager informed the Complainant that following the appeal meeting, looking at all the documentation and considering the claimants representations in the appeal meeting, that took place on 18 November, he would not allow the appeal.

The WRC received the Employee’s complaint on 14 January 2021.

Subsequently, on 12 May 2021, the Employee addressed a letter to the Employer reporting that on 07 May 2021, the other driver made a rude gesture towards him when he was stopped in traffic and the bus that the other driver was driving passed by.

On 17 May 2020, the Area Operations Manager informed the Employee t that having investigated his complaint  dated 12 May, including examining CCTV footage, no evidence of alleged incident was found.   

Company Arguments

It is the Employer’s position that the process used to investigate the Employee’s grievance was fair and reasonable. The Respondent has a robust Grievance and Disciplinary Policy in place that was followed as part of the process.

•         The investigation was thorough.

•         The Investigation officer spoke to both the Employee and the other driver.

•         All witnesses who were named, contributed statements, and were  spoken to, to understand the facts of the incident. The Investigating officer spoke to the company The Respondent, as part of the grievance investigation, sought advice from the Employee Development and Equality Executive as to whether the complaint constituted bullying. As a result, the Respondent proceeded with investigating the complaint under the Grievance and Disciplinary Policy.

•         The claimant was provided with representation throughout the process.

The Respondent acknowledges there was a slight delay with the investigation, but this was entirely due to the fact that the other driver was on sick leave from 04 September until 27 September and the Employee was on annual leave from 19 September until 30 September 2020. During this short delay, the claimant’s union representative was informed as to the reason for the delay.

It is important to note that the company grievance procedure does not make a provision for statements to be provided to the individual making the grievance. This disciplinary procedure  does have this provision contained. Were the matter to proceed to a disciplinary any statements taken would have been furnished. This policy is explicitly agreed by the company and unions and is understood by all representatives. This is reflected in the fact that no issue was raised concerning such during the grievance process. The Complainant was represented by his SIPTU Shop Steward. No issue was raised by the Employee’s representative  that any procedural deficiencies were present in the investigation.

The Employer investigated the Employee’s grievance in line with the Company’s Grievance Policy and found that neither drivers’ complaint could be upheld. From the information provided it was apparent the parties have a dislike for each other however, this fact should not have deterred each from carrying out their duties in a disciplined matter.

The Employee on 1 November 2020, shortly after submitting the complaint, and by facilitation of a marking in process by the company, moved from one garage to another. This has reduced and almost removed the prospect of interaction between the two drivers. There are instances where either driver may have a contractual entitlement to work overtime duties out of the same garage on occasion. However, the company cannot restrict any driver’s opportunity to work these opportunities without their agreement. To do so would be a breach of contract and indeed inappropriate in  the circumstances.

The Employee has expressed dissatisfaction that his complaint was not dealt with under the Bullying and Harassment Procedure. As stated above, the investigating officer took expert advice on this matter which then informed his investigation.

It is the company position that any award of compensation would be extraordinarily inappropriate in these circumstances. In the first instance it is not merited; the investigation was fair and the outcome reasonable in the circumstances. Additionally, it would set an untenable precedent, given the current circumstances of the company, which is only now returning to something closer to ‘normal’ operation following the lengthy covid restrictions. Any award of compensation may serve to encourage claims to the WRC based on any number of issues which employees may have been dissatisfied with over the recent past in the hope of securing a financial award.

Conclusion.

The Employer’s position is that Employee’s grievance was investigated in line with the Company’s Grievance and Disciplinary Policy and the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). The process was fair and reasonable, the Employee was given opportunity to state his case and he was afforded the opportunity to be represented by a trade union representative. All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Both parties provided comprehensive written submissions and presented these at the hearing of the complaint.

The Health and Safety Authority issued a new Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Workon 20th January 2021, this Code of Practice was effectively introduced on 23rd December 2020. The purpose of the Code is to provide guidance for employers, employees and their representatives on good practice and procedures for identifying, preventing, addressing and resolving issues around workplace bullying.

Within this Code the definition of bullying is as follows:

“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 be reasonably 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 the instant case I am satisfied that the Area Manager South (the investigating officer) sought the advice of the Employee Development & Equality Officer prior to deciding that the matters complained of did not constitute bullying. I believe the Employer deemed the incident as an isolated one. As such it could be investigated under the Employer’s Grievance Policy.

I note that the Employer’s representative states the following as per submission in relation to the utilisation of this Policy:

“This policy is explicitly agreed by the company and unions and is understood by all representatives. This is reflected in the fact that no issue was raised concerning such during the grievance process. The Complainant was represented by his SIPTU Shop Steward. No issue was raised by the Employee’s representative  that any procedural deficiencies were present in the investigation”.

The Employer’s Grievance Policy states:

·       XX (employer’s name redacted) understands that when people work together there will be issues or misunderstandings that need to be dealt with from time to time.

·       XX (employer’s name redacted) policy is that good communication, openness and willingness to co-operate and listen, will help to resolve issues efficiently and effectively.

·       XX (employer’s name redacted) recognises that grievances left unresolved can become disputes.

·       XX (employer’s name redacted) wishes to ensure that all employees have the opportunity, and that procedures are in place, to discuss any problems or concerns they may have about their employment with the appropriate level of management.

·       XX (employer’s name redacted) policy is that it is the responsibility of supervisors and managers within their levels of authority to listen and respond efficiently and effectively to all employee concerns in relation to their employment.

·       The formal grievance procedure can be invoked whenever an employee desires.

·       During the operation of this procedure the complainant will continue to work normally, in compliance with the instructions of his / her manager.

There is no requirement, as stated by the Employer’s representative, to issues copies of all meetings to the Employee. What is stated in the policy is that a summary note of the meeting will be kept and read out at the end of the meeting. The summary note of the meeting will be signed by all present. Copies will be issued to those in attendance.

The Employee’s grievance is:

The employee is appealing the outcome of the Grievance process into his complaint dated 4th September 2020 on the following grounds:

·       The company did not follow their own procedures in dealing with the complaint

·       There was no clear explanation given as to why the complaint was not dealt with under the Bullying & Harassment procedures

·       The process was delayed

·       The employee was not provided with all of the witness statements

·       There was no appeal allowed of the outcome

·       The entire process has caused the employee stress and upset

In reaching a conclusion on this complaint I have formed the following opinions having listened to both parties:

1.       The Employer correctly utilised the Grievance policy and with the exception of the delays in completing the investigation I have to recommend that the Employer has acted correctly.

2.       The Area Manager South (the investigating officer) sought the opinion of the Development and Equality Executive in relation to the complaint – was it bullying or otherwise. Again, I have to recommend that the company acted correctly.

3.       I accept the process was delayed and completed outside the timelines contained within the Grievance Policy. Part of this delay was due to the Employee being on annual leave and the other driver being absent from work due to illness. I have formed the opinion that the Employer could have been more re-active in communicating the reasons for the delays.

4.       The Employee, under the Grievance policy was not entitled to copies of all the witness statement.

5.       There was an appeal to the outcome. In saying that the appeal was not allowed I believe what is being said is the appeal was not successful.

6.       The entire process has caused the employee stress and upset. I’m sure that the Employer’s EAP is available should the Employee wish to avail of it.

Overall my recommendation is that the company acted properly in the handling of the Employee’s complaint, decisions were made by the company and these should now be accepted by the Employee.

In relation to the time delay the Employer must look at the process and senior management should now remind all supervisors and managers of the timelines contained within the Grievance policy.