Complainant

Respondent

Anonymised Parties

A Customer Support Representative

A Technology Company

Representatives

 Mason Hayes & Curran

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-00043273-001

26/03/2021

The complainant has a grievance about various aspects of his performance management.

The complainant says that he was not supported and given proper mentoring through several performance improvement plans.

A subsequent plan did not go ahead with it because his performance improved sufficiently. 

Separately, and much later, he noticed an alteration to an oral warning and he also had concerns about the actions of one of his managers. 

He was further concerned about the management of a grievance and the impartiality of the investigator, and about the conduct of a disciplinary hearing.

In fact, his performance greatly improved in 2019 and he says that the poor performance was attributable to the indifference, or poor people management skills, of his then manager and this was an experience shared by co-workers.

The whole process from start to finish has left him feeling disappointed, unsupported and sceptical about the attitude of senior staff if they are willing to condone such behaviour.

He thought in raising his grievance that it would be handled professionally and fairly.  But, in fact, things became worse for him.

He almost lost his job for highlighting an issue with a Team Lead who had not followed the correct company procedures and was bullying and treating him different to others on the team.

This resulted in additional stress to his daily life in work because he felt his continued employment would be at risk if he made a wrong move.

He wants to see those who he considers acted in the ways about which he complains held accountable.

Despite a lengthy narrative on the complaint form, the complainant has failed to articulate the precise details of his complaint or a proposed resolution to the matter.

However, in an effort to simplify matters, the respondent his claims can be summarised as follows:

He claims that a verbal warning issued to him in October 2019 for a breach of the attendance and timekeeping policy contained incorrect information and was therefore invalid. This is denied.

The documentation was signed by the complainant and any discrepancy in the detail would still

have resulted in a verbal warning. He clearly breached the attendance and timekeeping policy and he did not appeal this warning.

He is aggrieved that he was denied a bonus during the quarter in which the verbal warning was issued to him. It is standard company practice for employees to be disentitled to a bonus while a disciplinary warning is active, and this applies to all employees equally.

The complainant further claims that the warning impeded his career development within the Respondent.

The Respondent denies any unfair treatment or that the sanction affected the complainant’s development in the Respondent in any way. In any event, the disciplinary sanction has now expired and is not active on his record.

The complainant raised a grievance against his team leader in April 2020 and was disappointed with the outcome of the investigation. The respondent submits that the grievance was dealt with in a fair and appropriate manner. It was properly investigated, and the outcome was reached in accordance with company policy.

The complainant opted not to appeal the grievance outcome. Moreover, his then team leader (the subject of the grievance) has since moved to a different team and the complainant has not reported to him since April 2020. So, this is no longer an issue.

He is unhappy that a HR consultant employed by the respondent was involved in coordinating both his grievance and the appeal of a Final Written Warning issued to him in June 2020. This consultant was not involved in the decision-making aspect of his grievance or the appeal, two separate managers investigated the appeal and the grievance respectively.

The HR consultant’s involvement was solely limited to providing HR support, which is standard practice in the business, and, indeed, in many organisations. It’s also worth noting that the complainant did not appeal the outcome of his grievance.

The respondent denies the complainant’s complaint in its entirety and its position is outlined in greater detail in the detailed submission.

Notwithstanding this, it is worth noting that the respondent believes that the complainant’s issues can be resolved internally and would be more appropriately dealt with under the company’s established internal procedures.

The respondent has offered to engage in mediation with the complainant, however, he has refused. In fact, the respondent is willing to engage an external mediator to assist.

Mediation is a voluntary process, and indeed the requirement that it should be is not so much some rule of mediation, but the consent required is an important tool that the mediator can build on, using the parties’ willingness to find a solution to achieve one.

Regrettably, the necessary consent is too often withheld even in cases that are perfectly ripe for mediation.

In the civil arena, there are now potential sanctions arising from the Mediation Act 2017 and the Rules of the Superior Courts for the unreasonable refusal to attend and participate meaningfully in mediation.

No such sanctions are available in the employment sphere (the Mediation Act 2017 does not apply to employment disputes).

Thus, consent may be withheld by a party for a variety of reasons; poor understanding or inadequate explanation of the process, or as in this case a breakdown in trust on the part of the complainant that he would get a proper hearing of his grievance.

Sadly, mediation is becoming somewhat misunderstood and its potential to resolve issues greatly underestimated.

The jurisprudence of the Labour Court of the WRC and the Adjudication service is clear that it will not entertain cases where workplace processes have not been fully exhausted.  That may be a more difficult question where the local level process involved the offer of mediation which was declined, given the consent requirement.

The option for local resolution should include a requirement that the employee give full consideration to the option of mediation which should be properly explained by a trained mediator.

Only then should the right to reject reasonable efforts to resolve issues using informal dispute resolution options be accepted.

In that regard, while the Code of Practice SI 146/2000 refers to ‘informal resolution’ that Code was drafted at a time when the mediation option was a good deal less common in either the workplace of the civil sphere than it is now.

Better guidance on the role of mediation in the informal resolution of workplace disputes beyond that referred to in the Code would be of assistance.

Fortunately, both parties came to this hearing in a ‘resolution frame of mind’.

Notwithstanding the robust explanation for, and defence of the company’s actions the respondent made it clear from the beginning that it was open to an amicable solution.

There was a laudable intervention by one of the company’s managers and a recognition that if a problem exists with one of its employees that problem must be resolved. This is all that is needed for a successful mediation.

The complainant too, indicated his willingness to do likewise and If the referral to the WRC assisted him in seeing his way to participating in such a process at local level then the issue of jurisdiction is one that can be overlooked.

The precise form of the dispute resolution process is a matter for the parties. It should involve a suitably qualified external workplace mediator who can agree the precise format and designation of the process with the parties.

The description by the respondent manager referred to above as his assessment of what is required would go a long way to defining the purpose of the exercise; simply to find a resolution.

That will be my recommendation.

Again, I commend the positive attitude shown by both parties to finding a way forward.

I recommend that the parties engage a suitably qualified external workplace mediator to assist them in the resolution of their dispute.

In accordance with normal practice the person appointed should hold preliminary and exploratory  discussions with each side to fully explain the process.

They can then agree the precise format and designation of the process with the parties.

The process should be concluded within twelve weeks of the date of this Recommendation.

Mediation