Complainant

Respondent

Anonymised Parties

An Administrator

A Vehicle Testing Service Provider

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA-00034865

26/02/2020

The Complainant was employed by the Respondent as an administrator from the 1st October 2012 until he resigned his position in early 2020.  He submitted a complaint to the WRC under the Industrial Relations Act alleging that he was bullied during the last 4-5 years of his employment and that the Respondent failed to adequately address matters raised with them.  The Respondent is a provider of vehicle testing. The Respondent denied the allegations and contended that he had taken all reasonable steps to address the matter in accordance with the company policy and best practice. 

The Complainant submitted that he was bullied in his office for the past 4-5 years of his employment by his direct line manager.  He submitted that he had been called to the office for matters as trivial as being a couple of cents over or under in the till, that his manager had openly admitted to ignoring him in the past and that she had routinely humiliated him over the past number of years by speaking down to him in front of other members of staff.  He also submitted that his hours had been altered consistently with little or no notice, and that his manager had recently wanted him to search through a bin, in front of another member of staff, for a document which could have been printed.  He advised that he had told her that he was uncomfortable with this and that she had replied “if you don’t like it, you can get out”.  He further advised that she then told him to leave and not to return until contacted by senior management. 

The Complainant submitted that he made a formal complaint to senior management and requested independent mediation.  He advised that the Respondent had brought in a mediator who after two meetings had said to him that it was “very, very nasty” but not quite bullying.  The Complainant submitted that he asked the mediator what the difference was, and that the mediator had replied that he would email him a report of his findings.  The Complainant submitted that despite numerous attempts to obtain this from the mediator, at the date of the hearing he had yet to be supplied with that report.  He submitted that he had reluctantly agreed to a meeting with both his line manager and the mediator and that the line manager had made no effort to resolve the situation, stating that it was eating into her “personal time”.  He submitted that it was suggested that the parties try to communicate better going forward and she said “sure, I don’t have a choice”.  The Complainant submitted that he believed this to be a waste of time. 

At the hearing the Complainant expanded on his submission, verifying information already provided within the submission.  The Complainant further expanded on issues of concern throughout his employment.  He stated that he had loved working with the Respondent up until the employment of the new manager in 2015.  He stated that there were a number of small issues that occurred over that period of years and that he had not brought those matters to attention as he thought matters might settle down.  He described in detail the issues that arose and the mediation process that took place.  In particular he outlined the issues in 2017 in relation to money being taken from the till without advising him.  He talked about mistakes occurring that were not brought to his attention.  He talked about the fact that he received no positive feedback and that he was instructed to retrieve documentation from the bin, all of which he described as being undermining to his dignity in the workplace. 

The Complainant outlined that he had agreed to enter into a mediation process with an external mediator.  He described how that mediator had described the line managers’ behaviour as being nasty but not bullying.  He also advised that the mediator had considered that some of the conflict had arisen from cultural differences between him and his line manager.  The Complainant outlined how he was out of work with stress during that time and how he had agreed to return to work while the mediation was under way. However, he described that the mediation broke down because of open conflict at mediation hearings and that he did not believe that the mediation process was of any assistance.  He confirmed that he had been offered another mediator, however he believed the situation to be untenable and as a result he went out sick from work.  He confirmed that while he was out sick, he found another job.  He outlined that as a result of being on extended sick leave, he fell behind in rent and was obliged to borrow money from the credit union in order to meet his payments. 

The Respondent is a one stop shop for commercial vehicle testing which employs six employees in one location.  The Respondent submitted that the Complainant started working with them on the 7th March 2012 as an administrator and that he commenced sick leave in January 2020 while his grievance was being managed and that he sought a reference in mid 2020 from the Respondent and that as far as the Respondent was aware, around that time he commenced employment with another employer.  The Respondent submitted that he never returned to work with the Respondent and that he never formally resigned from the company. 

By way of background to the issue, the Respondent submitted that the Complainants’ line manager commenced employment on the 6th October 2015 and that the Complainant did speak to the managing director a number of years before the most recent incident in 2020 and told him that he was unhappy with how the line manager addressed his mistakes and errors with him.  The Respondent submitted that they were aware of these mistakes and aware that the line manager was going to speak to him about those errors.  The Respondent expressed to the Complainant that he was the only other person in the office with the line manager, so she would not need to pull up any of the testers regarding the mistakes as they weren’t making them.  He explained that if the Complainant can improve on these mistakes, then the line manager would not be speaking to him about them.  The Complainant chose not to lodge a workplace grievance or request any further support after that discussion and the Respondent felt that the Complainant was satisfied with the outcome of that discussion, and everyone continued on in their roles.

On the 6th January 2020, the Complainant contacted the Respondent to inform him of a row that had occurred between himself and his line manager.  Following that phone call, the Complainants’ Managing Director and Director met with the Complainant and he agreed to return to work the next day on the basis that the Managing Director would meet with both parties separately to talk about what had happened.  On the 7th January 2020, the Complainant called the Managing Director to advise him that he was not coming to work and requested the Grievance and Dignity at Work procedures which were emailed to him on the same day.  The Respondent submitted that the Complainant sent a message to the Managing Director that he felt it was best that he discuss the matter internally with a view to a long term solution.  The Managing Director responded to the Complainant that the only way he could resolve the grievance with the line manager was through the company’s internal procedures and that he was happy to meet with him to discuss.  On the 8th January 2020, the Managing Director met with the Complainant to discuss the options available to him and he informed him of the informal and formal options available to him.  From the conversation, the Respondent submitted that the Managing Director was under the impression that the Complainants’ preference was that the Directors of the company would chair a meeting between both parties which the Directors agreed to and set up for the following day.  On the following morning, the Respondent submitted that the Managing Director received a message from the Complainant stating that he no longer thought internal mediation would be the best option so he would not be attending.  The Respondent submitted that on the same day, i.e. the 9th January 2020, the Managing Director received a medical certificate from the Complainant stating that he was unfit to work until the 17th January 2020.  The Managing Director confirmed receipt of this sick cert and expressed to the Complainant that he was keen to resolve his grievance so that if he wanted to set up a formal mediation process for him, he was happy to do so, or if he wanted to wait until he was feeling better, that was fine too.  The Respondent submitted that the Complainant responded that he wanted breathing space and would be in touch the following week.  The Respondent submitted that on the 14thJanuary 2020, the Managing Director received a letter from the Complainant lodging his formal complaint.  The Respondent advised that upon receipt of this letter, the Managing Director engaged with an external consultant who was an experienced HR practitioner, to set up the mediation process.  The Respondent submitted that the external mediator engaged with both parties and arranged to meet with them on the 27thJanuary 2020, however the Complainant refused to attend.  In those circumstances the Respondent submitted that the external mediator engaged with the Complainant separate to the Accused and agreed to meet him on the 3rdFebruary 2020.  The Complainant agreed to meet with the mediator and to return to work on the 4th February 2020.  The Respondent submitted that the meeting took place and that the mediator met again with both parties on the 11thFebruary 2020 and that both parties agreed to meet together on that same day.  The Respondent submitted that on the 12thFebruary the Complainant failed to show up for work and submitted a medical certificate to the Managing Director with a note that the mediator process had been unsuccessful.  The Respondent submitted that the sick cert notified that the Complainant was unfit for work until the 26thFebruary 2020.  The Respondent submitted that the Managing Director responded to the Complainant, acknowledging the cert and welcomed the opportunity to talk about his grievance when he was feeling up to it.  The Respondent submitted that on the 20thFebruary, the Managing Director received a second letter from the Complainant outlining his account of events and making reference to the advice he had received from his solicitor, that if the situation was not resolved, then he would refer his complaint to the Workplace Relations Commission.  The Complainant also submitted a further sick cert confirming him as unfit to work until the 12thMarch 2020.  The Respondent submitted that the Managing Director responded to this letter on the 22ndFebruary 2020, asking the Complainant to engage in the formal process and that he would research names of investigators for him to choose from, which were subsequently sent to the Complainant on the 5th March 2020.  The Respondent advised that in that correspondence of the 5thMarch 2020, the Complainant was given two names of investigators for him to consider in consultation with his solicitor and to choose from.  The Respondent further advised that no response to that letter was ever received from the Complainant.  The Respondent confirmed that they received notice of the referral of the claim to the WRC on the 6thMarch 2020.  The Respondent advised that notwithstanding the submission of the case to the WRC, they continued to reach out to the Complainant to seek to resolve the matter.  They confirmed that they did so on the 11thMarch, confirming to the Complainant that they had received the WRC notice and advising him that he still had to go through the formal process.  In that email of 11th March 2020, the Managing Director also advised the Complainant that he had been receiving HR advice in relation to the grievance and had asked for his solicitors’ name, with the hope that his advisors could speak with his solicitor with an aim to resolving his complaint for him.  The Respondent confirmed that the Managing Director did not receive any response from the Complainant to that request. 

The Respondent submitted that on the 28thMarch 2020, the Managing Director received an email from the Complainant that the cert he received from the GP office was incorrect and had the previous date on it but that he would procure an amended cert if required.  The Managing Director responded to that email requesting an updated cert to ensure his sick leave was recorded accurately and also noted that the Complainant had pre booked annual leave that he could take if he wanted but that he would need a fit to work cert to be able to take it.  The Respondent submitted that no further contact was received from the Complainant until he contacted the Managing Director in approximately the middle of 2020 to ask him if he would give a reference as he had a new job lined up.  The Respondent further submitted that the Managing Director expressed that while there was a slight conflict in giving him a reference as he had a claim in against them, but if he needed one, he would give it.  The Respondent submitted that on this phone call, the Complainant expressed that he was not going any further with the case and that he just wanted to move on and get a new job.  The Respondent submitted that subsequently no formal request was received for a reference. 

In summary, the Respondent submitted that:

·       The Respondent respected the right of the Complainant to raise grievances in relation to his line manager

·       That he was advised by a solicitor throughout this time

·       That the company had outlined the Grievance and Disciplinary at Work Procedures and that these were provided to the Complainant

·       That the Respondent does not have an internal HR function, but offered an informal attempt to discuss the issues via the Director and that the Complainant rejected this option

·       That the Respondent outlined the options available to the Complainant and that he agreed to mediation

·       That the company engaged an external mediator to consider matters and to try to assist the parties to resolve their difficulties

·       That the mediation process was informal in nature but that after several meetings the Complainant deemed it to be unsuccessful

·       That the Respondent offered a formal independent investigation in which two external investigators were offered to him but that the Complainant never engaged in this process and availed of sick leave and lodged his case with the Workplace Relations Commission

·       That the Respondent offered for their HR consultant to engage directly with the Complainants’ solicitor to try to discuss the matter and to find a solution and that this option was not accepted

·       That while COVID did intervene in everyone’s working life at this time, the Complainant remained on leave until he rang looking for a reference for a new position in mid-2020

·       The claim was lodged on the 26thFebruary 2020 with the Workplace Relations Commission and notice of receipt of the complaint was received by the Respondent on the 6th March 2020.  The Respondent submitted that the Complainant chose to lodge his case instead of cooperating with his employers’ internal attempts to find a solution

·       The Respondent noted that while the Complainant had submitted in his submission a document outlining various incidents that he had recorded over the years, this document and many of the incidents and allegations contained therein were never presented to the company through any internal company procedures

·       The Respondent submitted that the line manager had never been presented with a properly constructed schedule of the Complainants’ grievances against her and that while she was prepared to attend the Workplace Relations hearing, that it would not be reasonable to subject her to cross examination in relation to those allegations as she had never had those presented to her within a formal process

·       The Respondent considered it regretful that the Complainant, under legal advice, chose to lodge a case under the Industrial Relations Act, the Respondent considered this to be ill advised and pointed out that it was not the role of the act, nor indeed of the Workplace Relations Commission to substitute for internal HR procedures

·       The Respondent recognised that the Managing Director was not a HR expert and so he called in external expertise when appropriate, that he did so by appointing an external mediator and that he did so when he provided options to the Complainant in relation to external investigators

·       The Respondent advised that as far as they were concerned, the Complainant continued to remain on sick leave, lodged the complaint with the Workplace Relations Commission and got a new job elsewhere without allowing the company to formally investigate his grievances.  In these circumstances, the Respondent asked that the Adjudication Officer find that they have no case to answer under the Industrial Relations Act

·       The Respondent submitted copies of all documentation referred to in this submission by way of supporting documentation

At the hearing the Respondent expanded on the submission provided and confirmed the processes offered to the Complainant to address his issues of concern.  The Respondent outlined that the company was a small company that did not have a HR Department and that in that context the Managing Director had done his upmost to address any issues that arose.  He again advised that many of the complaints raised by the Complainant had not been raised at workplace level in advance of the hearing and in that context the Respondent believed these matters should not be taken into account by the Adjudication Officer.  The Respondent confirmed that he would confirm his position on that matter in writing post hearing. 

The Respondent advised that when the line manager commenced employment in 2015 there were no issues initially and that the first time that he was made aware of a complaint was in 2016.  The Respondent advised that the Complainant did not raise the matter formally and that both he and the Complainant were in agreement that the matter could be resolved informally.  The Respondent advised that the Complainant had raised issues in relation to being overly criticised and unfairly criticised by the line manager.  The Respondent advised that the Complainant had told him that this was a constant occurrence and that the line managers’ behaviour had resulted in a very uncomfortable working environment.  The Respondent advised that he had spoken to the Complainant about the mistakes being made and explained why other staff were not having matters addressed with them, as they did not have the same number of errors and that he had asked the Complainant to address the errors being made so that matters would settle between the parties.  The Respondent confirmed that no additional issues were brought to his attention until issues arose in 2019.  The Respondent outlined that the issue which was brought to his attention was the incident in relation to the retrieval of documentation from the bin, however he indicated that other issues were alluded to in the course of that meeting.  He confirmed that the Complainant had advised him that he did not raise those issues previously as he did not have a list of things to present but that he was concerned about issues that had happened in the past.  The Respondent confirmed that the Complainant was quite distressed at that meeting when he described the issues that had taken place on that day.  The Respondent also confirmed that the following day the Complainant provided a sick certificate and went off sick.  Subsequent to the receipt of the sick cert, the Respondent addressed matters with the Complainant by email and advised the Complainant of the workplace policy for addressing matters of Dignity at Work and that on the 11th February he notified him of an independent mediator.  The Respondent outlined how the mediation process had progressed and how it had eventually broken down.  In the context that there was no resolution of the matter, the Respondent advised that he had contacted the Complainant by email to confirm to him that he was in a position to offer an investigation and he provided him with the names of two independent investigators who were available to conduct an investigation into the Complainants’ grievances. 

The Respondent advised that the Complainant did not respond to that correspondence despite many requests to do so, and that while remaining out on sick leave, the Complainant had gotten another position and had never returned to the work place.  The Respondent also advised that upon receipt of the Workplace Relations notification regarding the complaint, he had sought contact details from the Complainant for the Complainants’ solicitor to seek to engage on a more formal level to resolve matters, but again no response was received to that communication.  

Witness – Line manager

The Respondent had brought the line manager to the hearing as a witness to the issues that gave rise to this complaint.  The witness confirmed that she had commenced employment in 2015 and that she first became aware of the Complainants’ grievances at the end of January 2020.  She advised that the incident of the 6thJanuary had clearly brought matters to the fore.  She explained that there was a procedure in place which required the Respondent to retain hard copies of documentation for RSA inspection and that she had asked the Complainant for the document.  She advised that the Complainant had told her that he had put it in the bin as he had a scanned copy on the file, however, she required him to take the hard copy from the bin.  She confirmed at the hearing that the Complainant asked her “are you serious?” and she confirmed that she advised him that she was serious and that if he did not want to do it, he could leave.  She advised the hearing that the Complainant had said, “in that case, I will leave”.  She then said she advised him “not to come back before speaking to the Managing Director”. 

The line manager confirmed that she did engage in the mediation process, that she was open to it and that she did not describe it as a waste of time.  She confirmed that the atmosphere at the mediation was tense at times, but she felt that she and the Complainant had agreed points to work on and that she had expected a follow up meeting, however, no follow up meeting ever occurred.  She told the hearing that she had been advised that the Complainant had gone on sick leave.  The line manager confirmed that she had done people management training and that she had a diploma in Management and Leadership and that as part of her training she had conducted a PDP with the Complainant and she outlined how she had conducted that meeting.  She confirmed that she had held one disciplinary meeting and issued a verbal warning to the Complainant in 2016, however she confirmed that all other meetings with the Complainant were informal. 

In conducting my investigation, I have taken into account all relevant submissions made to me by the parties, both written and in person, as well as supporting documentation provided. 

Having considered those submissions, I noted the following:

·       That the Complainant did not raise a number of matters directly with the employer during the course of his employment

·       That the Complainant did bring grievances to attention in later 2019/early 2020 and that the Respondent did set up an agreed mediation process with an external mediator to seek to resolve matters between the parties in accordance with company Dignity at Work policy

·       The Complainant and his line manager participated in that mediation process and a number of meetings were held separately and together with the mediator

·       The mediation ultimately did not resolve matters between the parties

·       The Complainant expected to receive a report from the mediator however no report was ever received

·       When the mediation process broke down, the Respondent offered to conduct a formal investigation of the Complainants’ issues and provided the Complainant with the names to two independent investigators to conduct the investigation

·       The Complainant never responded to that communication

·       Upon receipt of the notification from the WRC of receipt of this complaint, the Respondent wrote again to the Complainant seeking contact details for the Complainants’ solicitor so that formal discussions could take place between representatives of the Respondent and the Complainant representatives.  No response was ever received to that communication

·       The Complainant had expressed the view that there was no possibility of him receiving a fair hearing within the workplace and that he felt the WRC was the best option

Taking all of the above into account, I conclude that the Respondent made every reasonable effort to address matters, both informally in the first instance and then formally through a mediation process and through a proposed investigation process.  While it was clear at hearing that the Complainant had been impacted by the conflict in the workplace, it is also clear that he did not participate in the full dispute resolution mechanism available within the workplace under the Dignity at Work policy.  Taking all of the foregoing information into account, I have concluded that the Complainants’ case is not well founded. 

As I have found that the Complainants’ case was not well founded, I have no further recommendation to make on this matter.