Worker

Employer

Anonymised Parties

A worker

A health sector employer

Representatives

David Field FORSA

Michelle Ni Longain ByrneWallace

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

18/11/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

At the hearing of this matter the parties made submitted that they would like the dispute to be considered on the basis of the papers submitted.

The finalisation of this recommendation was delayed due to the impact of Covid 19.

The worker submitted that she made a complaint under the Dignity at Work policy in February 2021 regarding the conduct of her manager. She submitted that she made her compliant in good faith and on the understanding that the Policy would be adhered to and that Management would respond sensitively, promptly, and discreetly to my complaint.   The worker submitted that she did not find this to be the case.

The worker submitted that her compliant describes incidents of inappropriate behaviour by my line manager which fall within the definition of bullying as outlined in the policy i.e. constant humiliation, ridicule, belittling efforts, often in front of others, verbal abuse, including shouting, spreading malicious rumours, showing hostility through sustained unfriendly contact and exclusion. Contrary to this, the preliminary screening, undertaken by a member of the national HR section found that none of the forty incidents in her complaint fell within the definition of bullying under the policy.

The worker submitted that she sent an email to appeal the preliminary screening outcome on the basis that it did not comply with the methodology provided for in the policy and provided evidence in support of this. However, in response the person who undertook the screening on behalf of the employer did not address any of her concerns and simply stated they adhered to the policy. The worker submitted that based on this, she again appealed the outcome of the preliminary screening but was informed that the policy does not provide for an appeal.

The worker submitted that during this preliminary stage of the process, the assessor disclosed sensitive information pertaining to my complaint to a number of individuals including the alleged perpetrator of my complaint. Over the following five month period, the assessor refused to provide clarity and withheld information related to when she had notified these individuals that the  complaint was submitted, her justification for disclosing this information and the details of what she had disclosed to them to-date. A response was finally received in January 2022 which was extremely concerning as it demonstrated a bias towards the alleged perpetrator and a complete disregard for the policy.

The worker submitted that she has made significant efforts, with the support of her Union Representative, over 16 months to resolve these matters but feels that the employer has continually frustrated the process in terms of ignoring me, dismissing my concerns and providing limited engagement and communication. The worker submitted that this has caused her unnecessary stress and worry, humiliation and exacerbated the anxiety and trauma she has experienced being subjected to workplace bullying. She submitted that she has been left feeling vulnerable and unsafe in my workplace.

The worker submitted that the results of the preliminary screening and the follow up management by the employer has resulted in her having no confidence or trust that her complaint has progressed fairly and transparently and that she is not being afforded her right to natural justice and fair procedure.

The worker submitted that she is now left with no alternative but to request the intervention of WRC adjudication services to seek a full and thorough independent preliminary assessment be conducted on my complaint according to the provisions of the policy by a suitably agreed person.

The employer submitted that in February 2021 the worker Claimant submitted a lengthy complaint document under the Dignity at Work Policy (“DAW policy”) concerning her line manager. The employer submitted that in accordance with the policy, the complaint underwent a preliminary screening process in order to determine whether the alleged behaviour fell within the definition of bullying as outlined in the Policy.

The employer submitted that the policy provides that if a complaint is deemed not to come within the scope of the policy, the employee will be so informed and advised on the appropriate procedure for dealing with the matter (e.g., the grievance procedure).

The employer submitted that the preliminary screening in this instance was conducted by an experienced HR professional. The result of the preliminary screening was issued in March 2021 in a five-page document.  It was determined that the complaints did not meet the definition of bullying as defined in the policy, and that many of the complaints made were more appropriate for investigation under the terms of the employer’s grievance procedure or the industrial relation process.

The employer stands over the outcome of the screening process and does not intend to engage in re-examining the substance of the complaints as part of this WRC process. The employer submitted that it has followed the process as provided for in the DAW Policy. The complaint underwent a screening process by a member of HR who was independent of the local HR structure.

The employer submitted that the DAW policy does not provide for an appeal of the outcome of the screening process, nor does it provide for screening to be carried out by an independent external person. The policy is a nationally agreed policy. 

The employer acknowledges that the screening process was not completed within the 7 working days provided for in the policy but was instead completed within 24 working days. Given the length of the complaint document submitted (which runs to 87 pages), the employer submitted that it was reasonable in the circumstances that extra time be afforded to the completion of the screening process, to ensure all of the matters raised were adequately considered.

The employer submitted that the report provided in March 2021 is the complete outcome of the preliminary screening.  In the Report, a table sets out the outcome of the screening of the complaints and refers to each of these by a short description, and states whether or not the complaint met the definition of bullying provided for in the DAW Policy. It also states if another process may be more appropriate for dealing with the complaint.  The report set out the reasons for the decision in relation to each of the complaints, which the policy does not necessitate.

The employer submitted that while the worker may not agree with the decision reached and submitted that she requires natural justice, this is a fundamental misconception of what she is entitled to and does not extend to an appeal of the decision or independent screening. The natural justice rights of the line manager subject to the complaints must also be considered. The complaints having been assessed under the preliminary screening process and found not to constitute bullying, it would be contrary to line manager’s natural justice rights to have the complaints re-opened, where this is not provided for as part of the DAW Policy.

The employer submitted that the worker was offered mediation to resolve the issues raised.  This offer was declined by the worker.  The worker was informed of the other routes which are more appropriate in this instance, and it remains open to her to seek to have the complaint’s addressed using these routes (i.e. grievance procedure and IR processes), which to date she has not done.

The employer submitted that the nationally agreed DAW Policy provides for a preliminary screening, and no appeal, and it acted in accordance with the policy when considering the complaint.   The employer submitted that the Respondent submits that the WRC should not make a recommendation of an independent screening of the complaints or a re-opening of the process

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

The complaint submitted by the worker was a sizeable one, running to 89 pages and took some time to be assessed by the appointed individual.  Given the size of the complaint submitted, I would expect some delay in the processing times and in the circumstances, I do not consider the timeframe for processing the screening to amount to an undue delay.

The Dignity at Work policy outlines a difference between its screening process and a formal investigation.  These are characterised as follows:

“Preliminary Screening

The purpose of the preliminary screening is to decide if the alleged behaviour, which is the subject of the complaint, falls within the definition of bullying, harassment or sexual harassment as outlined in pages 4 to 8 of this Policy. The rationale for this provision is that some complaints of bullying, harassment or sexual harassment referred under the Policy do not fall within the definition of bullying, harassment or sexual harassment. In order to carry out the preliminary screening, the complainant must set out details of the alleged behaviour in writing including approximate dates and witnesses (if any) and the context in which the alleged behaviour occurred. The preliminary screening will be carried out by a member of the HR Department who will decide whether or not it is appropriate to progress the complaint under the Dignity at Work Policy. This assessment will be based exclusively on the written details of the complaint as set out by the complainant. The employee will be notified in writing of the outcome of the preliminary screening within 7 working days. If the complaint is deemed not to come within the scope of the Dignity at Work Policy, the employee will be so informed and advised on the appropriate procedure for dealing with the matter (e.g., grievance procedure). If the complaint is deemed to come within the scope of the Dignity at Work Policy, the matter may be referred for mediation. If the matter cannot be resolved through mediation, a formal investigation will be carried out.

Formal Investigation

The alleged perpetrator will be advised that the complaint is the subject of a formal investigation. S/he will be given a copy of the written complaint and invited to respond to the allegations in writing within 2 weeks. A copy of the response will be forwarded to the complainant. Both parties will be offered the opportunity to avail of in-house counselling and support services.”

By sharing the complaint with the alleged perpetrator, the ultimate assessor appointed to screen the complaint appears to have moved the complaint into the realm of the formal investigation phase of the policy at an accelerated rate.  This certainly did not adhere to the procedures outlined in the policy where the preliminary screening is restricted: This assessment will be based exclusively on the written details of the complaint as set out by the complainant.

In a situation such as this where the assessor nominated by the employer has moved the matter into the realm of a formal investigation, it does not seem adequate to dismiss the complaint as amounting to behaviours which fall outside the remit of the policy.  In the circumstances where the assessor nominated by the employer has begun a formal investigation, such an investigation should be brought to a conclusion as provided for within the policy under the headings “Principles Governing the Investigation Process”, “Conducting the Investigation”, and “Outcome of the Investigation”.

I note that it was suggested by the assessor that the matters complained of are more appropriately dealt with under the grievance policy.

Industrial Relations complaint – Dignity at Work – Grievance procedure – formal investigation started – conclusion needed – local negotiation - mediation