Complainant

Respondent

Anonymised Parties

A Worker

A Local Authority

Representatives

Andrea Cleere SIPTU

Keith Irvine LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

CA-00046773-001

21.10.2021

The claimant is employed as a waterworks operative with the respondent. He made a complaint of bullying against a manager and was unhappy with the process. He argued the process was flawed .

The respondent denied the allegations and submitted that the process was fair and measured and complied in full with  the respondent’s Bullying and Harassment procedures .

 The claimant’s representative submitted as follows :

The case before you today has  been referred on behalf of SIPTU member Mr. X (here in after referred to as the member) who is employed by  Council X  (here in after referred to the employer) as a Waterworks Operative  on the Find and Fix programme. The matter which gives rise to the complaint relates to a complaint made by the member against a member of Management and the process that was applied regarding same. The matter has been exhausted at local level and has been referred to the workplace relations commission under Section 13 of the Industrial Relations Act 1969 for adjudication.

 BACKROUND .

1. The member made formal complaint against a Senior Executive Engineer Mr.Y (hereinafter referred to as the respondent), this complaint was made in writing to the Human Resources Department in line with the Dignity at Work policy. This complaint was acknowledged by the Human Resources Manager on 24th June 2020.

 2. It was some 3 months later until the Term of Reference were drafted on 30th September 2020 and circulated to the parties for comment in advance of the investigation however the report advises that the investigation team were only appointed on the 2nd October 2020.

 3. Furthermore, the report advises that a copy of the complaint was issued to the respondent on 9th October 2020 which is in direct breach of the Dignity at Work policy and consequently it would appear that the Terms of Reference were sent out to the respondent before the actual complaint.

 4. The respondent provided a written response to the complaint on 16th October 2022, the tone and manner of detail which was provided was completely disingenuous, the submission did not respond to all of the allegations and included a diary of interactions since the members start date on Wednesday 30th January 2019 which is tantamount to intrusion as per the dignity at work policy.

 5. The submission response sought to tarnish the character of the member and contained several breaches of the General Data Protection Regulations by including time sheets, medical information. The document provides information which is irrelevant to the complaint and outside the terms of reference. It is unacceptable for a Senior Executive Engineer to behave in this manner, the policy documents and terms of reference are quite clear on the process and procedures. The response submission displays admittance of menacing behaviour and excessive monitoring of work which can be categorised as bullying behaviour.

 6. Both the member and the respondent attended meetings on the 22nd October 2020, the shop steward attended with the member and the members line manager Mr.Z  attended with the respondent.

 7. It was obvious from the complaint and the response submission that Mr.Z  would be a key witness, therefore it is unexplainable as to why the investigation team allowed a key witness to attend with the respondent during his interview and is a flagrant breach of natural justice.

 8. From this meeting the investigation team identified two persons as witnesses for interview, namely Mr.W- the members colleague/team member and Mr.Z  – the members line manager.

 9. Unusually Mr.W declined to attend for interview as a witness that had been identified by the investigation team particularly as the Dignity at Work policy provides that failure to co-operate by providing any relevant information and meeting with the investigation team when required may be treated as a disciplinary matter.

10. It is bizarre that the investigation team failed to identify the Shop Steward as a witness, although, he has been quoted in the investigation report from the meeting he attended with the member as his representative on 22nd October 2022 similar to Mr. Z  who attended with the respondent.

 11. It is evidentiary that the investigation team were inconsistent with their approach to parties and were in fact biased towards the member. 

12. The report was completed on 10th December 2020 but it was not furnished to the member until 15th January 2021. An appeal was lodged and after much toing and froing the appeal was accepted.

13. The appeal outcome was not finalised until June 2021 which means it took 12 months to complete the process regarding the complaint.

UNIONS ARGUMENTS

 14. Allegation 1 The investigation team concluded the following- The conversation did happen and the tracker was mentioned. The tone of the conversation is disagreed between the parties. It is one person’s word  against another as there are no witnesses to this phone conversation. On the balance of probability, mentioning the tracker was used as some form of pressure to bring to bear on Mr. X. However, the purpose of the phone call was to meet up to deal with an issue between Mr. X  and private contractor. This appears to be an isolated incident in 2019 and thus in our view would constitute harassment. The finding of the investigation team fails to identify the Shop Steward  as a witness that can provide direct evidence regarding the conversation with the respondent in relation to the complaint. Moreover under the dignity at work policy as these are a series of allegation the admittance of threatening the member with the tracker constitutes bullying and at the very least if treated as an isolated incident it can be considered an affront to the member dignity under the policy.

 15. Allegation 2 It is not in dispute that the member was on his 10am break, it is apparent that despite learning this the respondent continued to engage with the member whilst on his rest period. It is disappointing that the investigation team failed to engage the witness to this event. The conclusion fails to substantiate why they prefer the respondents account over the members. The GPS (Transpoco) system is fitted to the vans for mileage purposes not for excessive monitoring and locating where employees are and for it to be used and abused in this manner demonstrates a complete abuse of power and trust. It would be far more reasonable to ring the member and ask where he is rather than abusing the GPS Transpoco system in this manner. Serious data protection issues arise from the nature in which the respondent harvested and collated information on the member which was used for a process in which it was not intended for, furthermore the member did not consent to it being used in this manner.

 16. Allegation 3 It is accepted by the investigation team that a miscommunication had occurred between Mr. Z  and the respondent Mr.Y. On the balance of probability, it is apparent that the member was caught in the crossfire of poor communication between management and against the backdrop of the respondent’s behaviour of threatening and excessive monitoring it is reasonable to conclude that this incident constitutes bullying.

 17. Allegation 4 & 5 The investigation team failed to respond to aspects of the allegations such as arriving on site with no prior communication, issues around the timing of lunch and approval for same. The investigation team did not appropriately address the issues of being left on site for a week with no work to complete. Unfortunately the investigation team took the approach of highlighting to the member that he was required as per his contract of employment to complete reports however failed to recognise the issue at hand. The member never refused to complete the report, he simply want the tools, resources and necessary training required to complete same. Previously the private contractors would complete this task as they had an IT application specifically for this purpose however the change in teaming direct employees together and not alongside external contractors created this anomaly. For management to keep staff from working onsite and expect request completion of reports without materials or training is bullying in nature.

 18. Allegation 6 It seems the convening of the meeting which relates to the RED BOX allegation was so that the member and his colleague could be questioned by the line manager and respondent about the report completion. The convening of such a meeting between four people when the Country had gone into lockdown was completely unnecessary, as the line manager and the respondent wanted to question the member and his colleague individual it makes no sense as to why both were called to the meeting together. In the circumstances of Covid 19 a phone call would have allowed questions to be asked. On the balance of probabilities, it is likely that the convened meeting and the red box were highly inappropriate and designed to intimidate and bully the member.

 19. Allegation 7 It is our strong position that the investigation team relied on evidence which was provided by the line manager who also acted as the respondent’s representative during the interview stage this a breach of best practice and does not follow natural justice and fairness of procedures.

20. Allegation 8 The investigation team are relying on an email as evidence from the respondent to confirm that there is no evidence of excessive monitoring however the conclusion fails to address the issue of the breach of GDPR by the respondent in accessing a system for tracking methods which was not its intended purpose. It remains our position that this amounts to excessive monitoring. In addition what is apparent is that the respondent advises that he was aware on the complaint in June 2020 but that he was only aware that it became formal in September 2020, however the email of 24th June 2020 suggests  that the respondent was aware that the complaint was formal in nature from June 2020 and was compiling a comprehensive response from the date the complaint was received. Which would explain the Councils delay in dealing with the complaint in a speedy manner, in fact the members Trade Union official had to contact the council request for the matter to be progressed after some 3 months following receipt of the complaint. This again substantiates the argument made that there was bias demonstrated against the member from the outset.

21. It is our position that the procedure and manner that was adopted by the Council throughout this process were in breach of the Terms of Reference and not in line with Natural Justice, the process was not executed in an expeditious manner, the representative for the respondent became a pivotal witness for the investigation team and his evidence was heavily relied upon as the deciding factor in not upholding allegations.

CASE LAW

We request that you the adjudicator find in our favour on the merits of our case and that in measuring the amount of compensation that is just and equitable having regard to all the circumstances and the gravity of the breaches of procedure that the Von Colon & Kamann v Land Nordhein – Westfalen [1984] ECR 1891 is applied where the CJEU has made it clear that the redress provided should not be appropriate that it acts as a deterrent to acting in this manner in the future.

 This submission is made on behalf of Council X  in respect of a complaint by Mr X  (herein referred to as “the claimant”) under Section 13 Industrial Relations Act 1969.

 1.2. The complaint Per the WRC Complaint Form submitted 21st Oct 2021 is noted as: “I made a complaint of bullying against a manager – I am unhappy with the process which was flawed. I require the matter to be adjudicated upon through the services of the WRC”

 1.3. No specific details regarding the complaint have been provided. The Council refute the allegation contained in the WRC Complaint. 

2. Background

 2.1. The claimant is employed as a Find and Fix caretaker with  Council X and works as part of a small mobile team that works across the county and reported to a line manager whom was the subject of a complaint from the claimant to the Council. At the time of the complaint, the Council had a Dignity at Work Policy which provided guidance for such complaints and set out the process followed should a complaint be made to the Council . The Council also had a process map setting out the primary steps in relation to complaints and investigations carried out under section 2.4 of the policy .

 2.2. The claimant submitted a complaint by letter on June 24th 2020 . The Council acknowledged the complaint the following day and requested the claimant to clarify which route he wished to progress his complaint – specifically by the Dignity at Work or the Grievance Policy; with copies of both policies being provided to him . However, there was no response at the time.

 2.3. On 17th Sep 2020 the complainant’s SIPTU representative confirmed by email that he now wished to progress his complaint under the Dignity at Work Policy . Following a preliminary examination of the complaint,  Mr.V – Senior Engineer -  met with the claimant to discuss the complaint and to confirm the issues raised. This took place on 18th September 2020.

2.4. On 2nd Oct 2020 an Investigation Team was appointed and subsequently Terms of Reference were issued to both the claimant and respondent for observations

 2.5. Interview meetings were then held with both parties on 22nd Oct 2020 with a further interview meeting scheduled to taking place on 5th November 2020 with a witness for the respondent. A further witness identified by the claimant refused to attend for interview.

2.6. Both parties were provided with transcripts of audio recordings of the interviews and were invited to make submissions on same. The Investigation Team then published their report on 10th Dec 2020 (Appendix 7), with it being issued to both parties on 11th Jan 2021 (Appendix 8).

 2.7. The claimant submitted an appeal on the process conducted in the Investigation on 5th Feb 2021 (Appendix 9). On 3rd Mar 2021, The Council acknowledged receipt of the appeal and that the appeal would be processed with the Chief Executive appointing  a Director of Service, to hear the appeal.

2.8. This was confirmed to the claimant’s representative on 8th Apr 2021 (Appendix 10) with a meeting taking place on 20th April 2021 (Appendix 11).

2.9. On 28th Jun 2021 the appeal report was issued and circulated to both parties (Appendix 12) where both the initial investigation and appeal did not find in favour of the claimant. A timeline of the events is provided also .

 3. The Council’sPosition

 3.1. The claimant’s complaint in the current case is that following his complaint to the Council, the process followed by the Council was flawed. It is a matter of fact that the Council has a Dignity at Work Policy which was in place at the time of the complaint and which was followed and utilised in relation to the complaint, following confirmation by his representative that this was the process the claimant wished to follow (and which was provided to him in advance of making this decision).

3.2. In this regard, the Council has followed the steps of the process as set out in Section 2.4 of said Policy specifically in respect to resolution of the complaint by way of formal investigation and thereafter by an appeal process.

3.3. Following completion of the investigation, where it did not find in favour of the claimant, he appealed to the Council in accordance with the policy, citing 5 grounds: • Inconsistent approach with the process adopted to investigate complaints • The inordinate delays in dealing with the complaints • The Terms of Reference have not been completely complied with • The evidence presented has not been analysed in a fair and impartial manner and the investigators have displayed bias throughout • The investigators have failed to consider all elements of the complaints

3.4. In hearing the appeal, the Appeals Officer , met with the claimant and his representative and reviewed the process carried out, the outcome of which is a very detailed investigation report.

3.5. The Appeals Officer gave careful and in-depth consideration to the 5 grounds submitted in the appeal where these had also been discussed in detail at the meeting held with the claimant and following the meeting, the minutes where circulated to the claimant and his representative, where additional commentary was provided from the claimant which was also fully considered prior to a decision being made in relation to the appeal.

 Conclusion

 4.1. The Council had a Dignity at Work Policy in place at the time of the complaint and fully followed and utilised this policy in progressing and investigating the complaint. 4.2. Both the investigation and the appeal were led by trained senior members of management in accordance with requirements of the Policy, with the process being implemented in a confidential, impartial, thorough and objective fashion.

It was submitted by the respondent’s representative that following receipt of the complaint it was acknowledged but the file showed no follow up correspondence from the claimant.It was further submitted that the claimant was furnished with draft terms of reference by email on the 9th.October and was invited to reply by the 16th.October – the same procedure applied to the respondent to the complaint.

It was submitted by the respondent’s representative that following receipt of the complaint it was acknowledged but the file showed no follow up correspondence from the claimant. It was further submitted that the claimant was furnished with draft terms of reference by email on the 9th.October and was invited to reply by the 16th.October – the same procedure applied to the respondent to the complaint.

The union submitted that the respondent was acting inconsistently and that on a previous occasion where a worker failed to participate in the investigation that the matter  was escalated to the disciplinary process immediately .

The respondent submitted that the Investigation Team examine cases individually – sometimes they are not put though the formal process ; sometimes they may be resolved – it depends on the circumstances. It was submitted that the responding party was aware of the generality of the complaint but did not have the details of the complaint. There had been confusion about what process the claimant wanted to utilise – grievance procedure or bullying and harassment procedure. The respondent rejected the complaints of delays on the respondent’s part. It was advised that the Investigation Team signed off on the Terms of Reference.

It was submitted by the union that the terms of reference were not complied with as the claimant was denied his rights under natural justice. It was submitted that the Investigation Team failed in allowing the responding party’s representative to  act on his behalf in circumstances where the individual was a key witness and also the claimant’s line manager .It was further argued that the Investigation Team failed in not identifying the Shop Steward to give evidence. It was asserted that it was up to the Investigation Team to decide who would bring relevant and valuable evidence .It was submitted by the union that there had been bias throughout the investigation .

It was submitted by the union that the Investigation Team had failed to examine all relevant factors – the allegation against the claimant of not writing a report was referenced – it was submitted that the claimant never refused to write a report but the Investigation Team had not dealt with this.

It was further submitted by the union that the Investigation Team had failed to investigate the Red Box scenario and the reasoning for a face to face meeting during a high alert Covid period. It was submitted that the Investigation Team failed to deal with Data Protection matters and gave no reasoning for preferring one party’s account over the other’s.

The respondent’s representative submitted that the report was comprehensive , detailed and transparent. It was submitted that the investigation team looked at the facts , not hearsay .It was submitted that Data Protection issues were not raised in the original complaint and were outside the scope of the investigation. It was submitted that the union would have complained if the employer had sought to introduce fresh complaints after the event .It was submitted that the witness who did not participate in the investigation was no longer employed by the Council.

I have reviewed the evidence  presented at the hearing , the submissions made by the parties and have considered in detail  the report of the Investigating Team and the report of the Appeals Officer.

The conduct of any investigation must adhere to the principles and of natural justice and fair procedures without any element of or potential for bias.I find the investigation was compromised  by the following factors –

The responding party Mr.Y was represented by the claimant’s line manager Mr.Z  ; the representative – Mr.Z -was subordinate to the responding party Mr.Y.It was evident from the outset that Mr.Z  witnessed a number of the disputed exchanges and was also the subject of criticism by  the claimant .In  such circumstances , the potential arose for contamination as well as conflation of evidence by permitting the representative to act both  as a representative and also participate as a witness. This was unfair to the claimant and failed to meet the standards required of a fair and proper investigation. The individual  - Mr.Z - was placed in  an unreasonable triangulation which had the potential to lead to an element of bias , deflection and conflict of interest. The failure  on the part of the Investigating Team and the Appeals Officer to recognise that this dynamic fell far short of best practise in terms of a fair and transparently fair investigation supports the claimant’s contention that the process was flawed from the outset. 

I further  find that  the Investigating Team and the Appeals Officer failed to explore with the responding party what alternative  means could have been utilised to facilitate a safe exchange between the parties with respect to the information being sought on the day of the Red Box incident.I further find that the Investigating Team and the Appeals Officer failed to explore with the responding party what insight he had,  if any,  into  the likely reaction of the complainant to the red box and how potentially,  it could have been perceived as intimidating and humiliating.

I find that no plausible explanation was advanced by the respondent for the protracted nature of the investigation.

For all of the foregoing reasons , I have concluded that this was a flawed investigation and consequently I uphold the complaint.

I recommend in full and final settlement of this dispute that the respondent pay the claimant €3,000 compensation for the gravity of the procedural breaches identified above and that the respondent review their own practises and training on Workplace Investigations.