ADJ-00027738

Worker

Employer

Anonymised Parties

A security guard

A provider of security services

Representatives

James Doran, BL instructed by Mulhall and company solicitors

Management Support Services (Ireland) Ltd

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-00035517-001

31/03/2020

The worker is a security operative, based in a large shopping centre. He has worked in the role since the 1st November 2008 and remains in employment there. He is paid €454.35 per week. The dispute relates to a grievance lodged by the worker relating to an interaction he had with a member of management (who is referred to in this recommendation as ‘the manager’). The worker outlines that his grievance was not adequately investigated, and the employer denies the claim.

The worker outlined that he was subjected to aggression, belittlement and intimidation by the manager, who was his supervisor. This incident took place on the 25th August. This was recorded on a bodycam and witnessed by two colleagues. There was also the building CCTV where the incident took place. One witness had provided a written statement, while the other was available to give evidence.

On the 3rd September, the worker submitted a grievance and the employer said that it would appoint an independent investigator. The worker outlined that one witness was never asked to give their account to the investigator. This witness had provided the statement and had since left their employment. The investigator did not view the camera footage and it should have been retained.

The worker outlined that this caused him to take six weeks unpaid sick leave. He appealed the grievance outcome, but the finding was not overturned. No notes had been taken at the appeal hearing and the incident was described as a disagreement. There were also no notes of the investigation meeting.

The worker outlined that the employer should have been proactive in preserving the camera footage. No incident report was prepared but the worker went home on the day of the incident.

The worker outlined that this case was not about the incident of asking for the bodycam to be turned on but what happened afterwards, about ten minutes later, in the control room and the canteen. He said that he had been paid €203 per week under the sick pay scheme.

The employer outlined that the worker had been paid as part of the sick pay scheme. It accepted that there had been a dispute between two employees. It outlined that it had complied with its procedures in investigating the grievance and issuing a decision. The worker was afforded an appeal. While the worker may not be happy with the outcome of the process, the employer had complied with procedure.

In respect of the CCTV, the employer submitted that this was not their footage, and it was not the data controller. The request for the CCTV came 33 days after the incident, when the policy provides that footage is deleted after 30 days. The investigator had sought the footage, but it was no longer available.

The employer outlined that it did not interview non-employees or former employees in respect of a grievance. It only interviewed current employees. It was submitted that the investigator had been fair, and the investigator had one statement on the worker’s side but two other statements which corroborated each other and described the incident differently.

The employer outlined that in its view, there were four people who could give evidence of what happened at the incident. They were the worker, the supervisor who sent the worker home, the colleague and the person against whom the complaint was made (the manager). The supervisor had confirmed the manager’s position. The employer did not have the supervisor’s statement in this respect and commented that the investigator had since passed away.

The employer outlined that it accepted that the worker does not like the outcome, but he was afforded all of his rights and was treated fairly.

It outlined that the worker was not sent home but was allowed go home. It submitted that there was no incident and therefore no need for an incident report or to get the CCTV. The statement that had not been considered in the investigation was that written by the controller who had viewed the CCTV and had since left its employment.

On the 3rd September 2019, the worker raised a grievance regarding an incident that occurred in the workplace on the 25th August 2019. This was subject to an investigation meeting of the 14th October 2019 and the outcome issued on the 6th November 2019. This found that the worker was not subjected to aggression, intimidation or threatened by a named manager. Rather, the worker was held not to have used or turned on his bodycam, the reason the manager spoke with him in the canteen. The worker’s subsequent appeal was also unsuccessful, although the appeal manager suggested mediation, which the worker declined.

The incident involved the manager approaching the worker in the canteen regarding the use of the bodycam. The worker’s account is that the manager was abusive, aggressive, intimidatory and threatening. Any reader would be very concerned to read the worker’s account, in particular as it involves a line manager. The investigation and appeal found that the incident did not take place as described by the worker.

As referred to by the parties, SI 146/2000 sets out that grievances should be ‘fairly examined and processed’, the right to a fair and impartial determination of the issues concerned and that account is taken of ‘relevant or appropriate evidence, factors or circumstances’.

Section 13 of the Industrial Relations Act requires that I make a recommendation in respect of the merits of this dispute. In this case, the question is whether the worker’s grievance was fairly processed, and a fair determination made, including consideration of all the evidence.

It is not unusual for a decision-maker investigating a matter to face what appears to be a complete conflict of evidence. Someone could be telling an untruth, or parties may recall an event differently or interpret what happened in different ways.

In this case, the investigator faced contradictory accounts and was unable to recover CCTV, as well as a witness no longer being available as they had left the employment. The key question to be determined in the investigation was whether the supervisor had been present and witnessed the incident. The worker’s account was that this supervisor did not witness the incident but met the worker shortly afterwards. It was after this conversation that the worker went home. The investigator’s finding was that this supervisor actually witnessed the incident and corroborated the account of the manager against whom the grievance was made.

What the supervisor had to say was crucial in determining this investigation. The investigator refers to meeting with the supervisor. The investigation report records that the supervisor witnessed the event and that his description of it did not match that of the worker. The supervisor did not provide a written statement and there are no notes of the meeting. It is not clear what the supervisor thought of the worker’s different account, i.e. the supervisor had not witnessed the incident and they had only met after it.

Also before the investigation was a detailed statement from the colleague, which outlined that he felt that he had to physically intervene to prevent the manager’s behaviour from escalating. The manager did not provide a statement and there are no minutes of what he said.

There will be obviously cases where the investigation is thorough and fair, and yet the worker might still be unhappy with the outcome. If the investigation complies with SI 146/2000 by being thorough and fair, there would be no grounds for a recommendation undermining that outcome. In this case, however, there were significant shortcomings that merit a recommendation in the worker’s favour.

The shortcomings relate to the important role the supervisor played in the case and the obvious contradiction between the accounts of the parties. There are no minutes or statement from the supervisor, and he was not pressed as to the different account of his role presented by the worker. The account of both the worker and the colleague was of an aggressive and unacceptable interaction in the workplace, and there were no statements from the manager or the supervisor setting out another account.

For these reasons, I find that the investigation of the grievance did not apply the principles set out in SI 146/2000. It follows that I make a recommendation in the worker’s favour. I note that the worker took sick leave following the incident and was paid €203 per the sick pay scheme. He incurred loss as this was below his normal weekly remuneration. As described by the worker, the incident was a serious matter. It involved an interaction between a manager and a staff member over a routine aspect of the role: using a bodycam. A grievance was made about the manner of that interaction but was not adequately investigated in line with SI 146/2000. I, therefore, recommend that the employer pay to the worker redress of €1,500.

CA-00035517-001

I recommend that the employer pay to the worker the amount of €1,500 in light of the shortcomings in the investigation of his grievance.

Industrial Relations Act / grievance complaint / SI 146/2000