Complainant

Respondent

Anonymised Parties

An employee

A passenger transport company.

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-00044849-001

30/06/2021

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

CA-00044849-002

30/06/2021

The employee has been in employment with the Employer since 2004.

The employee submitted this complaint, under section 13 of the Industrial Relations Act, 1969 on 30th June 2021.

Background to the 1st complaint/grievance

1.       The employee commenced his employment in 2004. Until 2016 he was working as a bus driver, and since 2016 as an engineer. He was responsible for repairing buses and from time to time, required to bring the bus for the repair into the garage. 

2.        On 3rd of April 2020 the employee was approached by a work colleague. It is the employee’s position that this colleague acted in an aggressive and threatening manner. After the incident our member reported it to his superiors and, subsequently, was asked to put his complaint in writing. Our member did so on 15th of April and submitted it to his manager Mr. PD.

3.       The employee was so shaken and traumatized by the events that he sought medical help. On 17th of April he was assessed by the Respondent’s Chief Medical Officer who found him unfit for work. However, CMO also stated that in the circumstances the employee could return to work when his work-related issues have been resolved. This assessment was sent to Mr PD.

4.       The employee expected that his employer would try as soon as possible to resolve his work-related issue. However, Mr PD decided to park the entire investigation until our member was fit to work. This decision was against the medical opinion issued by the CMO. It seems as Mr PD did not want the employee back at work at all.

5.       The employee remained on sick leave waiting for his grievance to be resolved while Mr PD was waiting for the employee to be fit for work before he would address his grievance. 

6.       On 15thof July CMO again assessed the employee. The CMO again stated that the employee would be fit to work if the work issue was resolved. This time the letter was also sent to higher management. Again, it is the employee’s understanding that no action was taken by the Employer.

7.       Shortly after the employee was to attend a WRC hearing in August 2020. The WRC was to investigate his other complaints from different incident (2018). Despite CMO opinion from 15th of July 2020 that the employee was fit to engage with the employer (but not fit to work), the Respondent requested the employee to provide a medical certificate proving that he was fit to participate in the WRC hearing.

8.       For the third time the Employer got clarification that the employee was fit to engage with the Employer (but not fit to work) but did not do anything.

9.       On 16th of November 2020 the CMO again assessed the employee and repeated the same observation as in his previous assessments. His assessment was sent to the employee’s line manager and one other more senior manager. The employee was not fit to work but fit to engage.

10.    Six months after the employee lodged his complaint, Mr. PD (line manager) decided to progress with the grievance. Something which he should have done immediately after the employee lodged the complaint.

11.   The grievance meeting was set for 14th of December 2020. At that meeting the employee expressed his dissatisfaction with the delays. Mr. PD replied that he did not feel appropriate to contact the employee while he was on sick leave and only the latest CMO opinion allowed him to do so.

12.   At this meeting the employee learned that his work colleague, the one who was involved in the incident on 3rd of April, had made a counter complaint against him. Our member also learned that Mr. PD was in possession of some other statements and evidence. The employee requested to be furnished with the relevant materials.

13.   Initially Mr. PD sent our member just one statement, this being the one provided by the employee’s colleague who had been involved in in the incident on 3rd April 2020 (on 17th of December 2020). Thus, the employee had to request a number of times to be given other statements. Mr. PD did so finally on 8th of December 2020.

14.   At that point it became clear that the colleague accused our member of interfering with clock cards (which was supported by another witness) and he alleged also that it was the employee who had been aggressive and had acted in a threatening manner. The colleague submitted his complaint on 3rd of April 2020 – but the employee was not aware of it.

15.   On 12th of February 2021 Mr. PD met again with the employee to discuss the new evidence. At that meeting Mr. PD confirmed he had made his final decision in December 2020 but was reluctant to provide the outcome because the employee was out on sick leave. Again, Mr. PD told the employee that he had decided to pause the process until he was fit to work. The employee stated that Mr. PD had made his decision before the statements were given and that the employee wasn’t given the opportunity to defend himself or question the statements.  Mr. PD was asked to give a written statement outlining his position. Mr. PD did so on 16th of February 2021.

16.   On 3rd of March 2021 SIPTU wrote to the higher management, specifically to Mr. AG requesting a meeting to discuss the employee’s grievance and the process.

17.   On 18th of March 2021 it was Mr. AG who forwarded Mr. PD’s outcome, dated 12th of January 2021.

18.   At that point the employee learned that not only his grievance was not upheld but that Mr. PD had decided to initiate a disciplinary procedure against him for his alleged interfering with clock cards. The employee appealed the outcome via his union official.

19.   On 17th of April the appeal meeting took place. At that meeting the employee discussed also the outcome from his WRC hearing. At the appeal meeting the employee expressed his deep dissatisfaction with Mr. PD overall unprecedented, inappropriate continuous behaviour. Mr. AG advised the employee to lodge a grievance against such behaviour. The employee did so once again via his union official.

20.   The employee’s appeal was not upheld.

21.   The employee felt that he was not treated fairly by the Employer – mainly – that Mr. PD failed to conduct a fair grievance hearing and significantly delayed the overall grievance process forcing him to be on sick leave. He decided to bring his case to WRC and seek appropriate redress for his unfair treatment during the process. 

The case

22.   The Employer’s grievance procedure provides a clear timeframe to proceed with grievances, for example: after a written complaint is lodged (stage 2), a grievance process must be concluded within 14 days. An appeal must be concluded within 9 days from the appeal.

23.   It is the employee’s case that the Respondent did not process his complaint in a fair manner and fair procedures were not followed:

a)       there was a significant and unprecedented delay with addressing the employee’s complaint. It took 6 months to initiate the grievance process and it took further 3 months to conclude the first grievance process stage. The Employer’s justification for the delay was that the matter could not be resolved while the employee was on a sick leave.

At the same time the CMO made clear to the Employer on four occasions that the employee can only cease being on sick leave when the matter is resolved.

Thus, in our view, it is strikingly clear that the Employer deliberately, consciously decided not to address the employee’s grievance, to the employee remaining on his sick leave for a long time

b)      the evidence was withheld from the employee for a significant amount of time. The employee had to request a number of times for the statements that had been made.

c)       Mr. PD prepared the outcome from the grievance meeting on 12th of January 2021 without giving the employee an opportunity to comment on evidence gathered. Furthermore, he decided to withhold his decision for the same reasons he decided to pause the grievance meeting. 

d)      In the grievance outcome Mr. PD decided that the employee should be disciplined for interfering with the clock cards. That is unbelievable for a number of reasons:

-          The employee was not warned that he under any investigation for alleged misconduct

-          Mr. PD received a countercomplaint alleging that our member was allegedly interfering with clock cards on 3rd of April 2020 but only decided to act on that complaint on 12th of January 2021.

It is extremely worrying that a grievance against a work colleague could be handled by the Employer in such a way.

Given all the above, the employee seeks a just and equitable recommendation. In similar cases where there was a significant delay with processing employee’s grievances, WRC and Labour Court were awarding compensation. We also ask the Adjudication Officer to consider unfairness of the Respondent’s action in relation to how his grievance against his work colleague was dealt with, specifically in relation to withholding the evidence, reasons for delay. If the Respondent acted fairly and without undue delay, as per the Respondent’s own policy and CMO medical opinion, the employee would not have remained on sick leave for almost two years.

Overall, we ask for such recommendation which encourage the respondent to be fair and reasonable in dealing with grievances and ensure that in the future the Respondent would take seriously similar complaints. 

Second complaint/grievance

1.       Having regard to all the above, and unprecedented behaviour of Mr. PD during the grievance process, the employee decided to lodge a bullying complaint against him, as per Mr. AG’s advice given at the appeal hearing on 28th of April 2021. He prepared a lengthy written complaint about not only incidents from the grievance process but previous ones.The employeewill tell that there were a number of incidents with Mr. PD prior to his involvement as investigator. Mr. PD’s behaviour during the grievance process was the latest in the chain of his actions. The employee will confirm that Mr. PD acted continuously in inappropriate ways over a significant amount of time. The last action of bullying was the way he handled the investigation of the employee’s grievance.

2.       On the same day the employee emailed the complaint to Mr AG. On the following day Mr AG informed the employee that another manager would investigate.

3.       On 14th of May 2021 the employee met with Ms M, the appointed investigator, who advised him that his complaint needed to be investigated by the equality officer, Ms K, as it was a bullying complaint.

4.       Shortly after, on 17th of May 2021 the employee received an email from Ms K (Equality Officer) that his complaint cannot be re investigated under the dignity and respect policy as it has already been investigated under the grievance policy and all other complaints had exceeded the 6-month time limit under the dignity and respect policy.

5.       SIPTU wrote to Ms K on 11th of June 2021 that the last incident of bullying was within the last 6 months.

6.       On 14th of June 2021 Ms K wrote that the issues from February and March of 2021 have already been investigated and appealed and cannot be re investigated under the dignity and respect policy.

The employee’s case.

24.   It is SIPTU’s understanding that the Respondent denied investigating the employee’s bullying complaint given that the matter was, allegedly, already investigated (inappropriate behaviour of Mr. PD during grievance process). It is SIPTU’s position that it is a bizarre rationale for the following reasons:

a)       If it is agreed that a bullying complaint was already investigated, that would mean that Mr. PD investigated a complaint made against himself. That does not make sense. And even if it does – it would mean that he was a judge and jury in his own case.

Nevertheless, Mr. PD did not investigate the employee’s complaint against himself. 

b)      It is possible that the Employer was of the view that matters related to Mr. PD’s behaviour during the investigation (15th of April 2020 – 18th of March 2021) were part of the employee’s appeal process with Mr. AG (hearing on 28th of April 2021). However, when the employee wished to bring his concerns about Mr. PD’s behaviour, he was advised that this should be investigated not by him, but a separate investigator. Thus, our member lodged a separate complaint.

25.   Given both the above points - there are no accurate words describing the Respondent’s evasiveness in addressing the employee’s grievances, unfairness in their actions and mistreatment of the employee. The Employer has a history of delaying unreasonably any grievances the employee lodges, and it seems that not only failed to learn any lesson from the last WRC hearing, but continue to treat the employee unfairly. 

26.   Given all the above, the employee seeks a just and equitable recommendation. It might be necessary to recommend a proper investigation in relation to the employee’s grievance.  Overall, we seek a recommendation which encourages the Employer to be fair and reasonable in dealing with grievances against management and ensure that in the future the Employer would take seriously similar complaints.  

This current claim involves two complaints.

#1) The employee is challenging the investigation process and outcome based on an issue which occurred in April 2020 at the clock card machine between himself and a colleague. The employee has been and remains absent since that incident to present date. The employee was provided with the investigation outcome in March 2021.

#2) Having received the outcome of the investigation which resulted in the employee being recommended for a disciplinary, the employee submitted a bullying and harassment complaint against the investigating officer, his Manager Mr.PD. The complaint is that this subsequent grievance was not ‘investigated properly’ by the employer.

1.       On 3 April 2020, Mr. PD, Engineering Manager, received a letter from another employee with details regarding an alleged incident that took place between the complainant and himself at the clock-card machine in the garage. The employee alleged that the complainant was tampering with his clock card.

2.       On 3 April 2020, a report outlining the above was made by Mr.DG and e-mailed to Mr. PD (Engineering Manager).

3.       On 16 April 2020, Mr. PD then received a letter from the complainant outlining a formal complaint of ‘harassment’ with regard to Mr. WW in relation to the same interaction on the 3RD April 2020. 

4.       On 23rd April 2022, Mr. PD wrote to the complainant acknowledging his letter. Mr. PD informed him that he was currently investigating the incident but had to put it on hold due to the complainant’s absence on sick leave and that he would conclude the investigation upon his return to work, when he would have an opportunity to interview him in person. Mr. PD had met Mr. WW as part of the investigation at that point. Mr. PD had concerns from both a procedural and claimant well-being point of view. As stated above, the claimant has remained absent from work from that point to date.

5.       On 16 November 2020, the claimant underwent a telephone assessment with the Chief Medical Officer (CMO). Mr. PD was subsequently notified that the claimant was willing to attend an interview as part of the investigation while on sick leave. 

6.       Despite Mr. PD’s serious reservations, the claimant was contacted by letter on 19th and 25th November and was given the option of meeting in person, by telephone or an agreed online forum. A provisional date of 30 November 2020 was agreed however the meeting was rescheduled and took place on 14 December 2020. The meeting was attended by the claimant, his representative from SIPTU and Mr PD. A clerical staff member also attended and took notes, which were distributed to all parties afterwards. 

7.       The claimant was met again on 12 February 2021 and was supplied with all documents being considered in the investigation.

8.       On February 16, 2021, Mr. PD wrote to the claimant following up on their meeting. He summarised the recent process and confirmed his understanding of the appropriate operation of the grievance process while an employee remains absent.

9.       From the initial complaint and investigation, it was clear that the matter was a conventional grievance and should be dealt with in line with the grievance policy. There was no allegation of repeated behaviour nor was there any allegation that the behaviour incorporated one of the nine equality grounds despite being described as ‘harassment’. The Employer’s policy is that a grievance will not be investigated while an employee is absent from work or unfit to attend work. Mr. PD was therefore quite reluctant to conclude the grievance investigation while the claimant was not available to work as he felt it would potentially be in breach of the established grievance policy. Mr. PD also had concerns around the claimant’s well-being if he was to proceed while the claimant was unfit to attend work.

10.   As stated in Employer’s Grievance Policy and Procedure section 4. Page 2 of Policy;

“During the operation of this procedure the complainant will continue to work normally, in compliance with the instructions of his / her supervisors.” 

11.   Due to his reservations Mr. PD ultimately requested HR to issue the final report to the claimant. The finding was that his grievance was not upheld. Additionally, it was recommended that the claimant himself be referred to a disciplinary process

‘Summary 

I acknowledge that an incident between both parties which consisted of a verbal exchange, did take place as outlined by both in their statements and related correspondence received. But as this was a one-off episode it cannot be construed as bullying or harassment which can only be considered if a previous history of related episodes is documented and reported. In this case it is not. 

During this investigation it has been highlighted by a number of staff in their statements that the claimant (name redacted) was interfering with clock cards which is a very serious offence and I will therefore be following up this report with the claimant (name redacted) by using the standard A form / B form disciplinary format.’ 

12.   The claimant appealed the decision to the HR Services Manager. The appeal was heard on 28 April 2021. In the appeal outcome the HR Services Manager referenced the time between complaint and outcome.

‘Firstly, I want to acknowledge the length of time it took to investigate this complaint, this was due to a number of factors that were outside our control, the main one being that you were out on sick leave and the manager had concerns over carrying out the full investigation until such a time you returned to the workplace. ‘

13.   The outcome was that the HR Services Manager made the decision not to uphold his appeal.

14.   Mr. PD was cautious in concluding a grievance investigation in circumstances where he strongly felt the matter may be concluded contrary to company policy and the practice operating historically within the company. He explicitly outlined this intention to comply with the correct procedural process in correspondence to the CMO.

15.   Mr. PD also openly communicated his views on the correct procedure to HR and to the claimant and his representative.

16.  It is clear that Mr. PD was looking to objectively follow the company policy in order that procedural fairness and a consistent policy be applied.  In fact, he felt that, concluding and issuing the report while the claimant remined unfit for work was contrary to company policy and indeed requested that the report would be issued to the claimant by HR.

17.   It is safe to say that Mr. PD was correct to remain procedurally cautious in providing an outcome to the claimant’s grievance while he was absent, the claimant having previously submitted a claim to the WRC following a previously unsuccessful grievance. As transpired, the claimant has, post investigation, not only challenged the grievance process and outcome itself but has gone further and submitted a bullying claim personally against Mr. PD

18.   In arriving at his decision Mr. PD took into account all relevant information and witness information supplied by those present at the time. The outcome was procedurally fair and substantively correct.

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

In relation to the first complaint I note that the Employer has adhered to their own policy of not progressing employee grievances during periods of absence of the employee with the grievance. I also note that the medical officer deemed the employee fit to engage but unfit to return to work.

This has led to the crux of the matter, i.e. the time delay in progressing the employee grievance.

There are, I believe, two possible steps that could be take by the employer to prevent a repeat of such an occurrence:

1.       The Employer could change their policy and engage with employees during a period of absence. Employees being deemed fit to engage but not fit to return to work happens on a regular basis. Many Occupational Health Specialists will deem an employee fit to engage but not fit to return to work.

2.       If the Employer wishes to continue with the policy of non-engagement during periods of absence they should consider inserting such a clause into their Grievance policy and have this agreed with all stakeholders.

In the instant case I cannot find fault with the Employer for adhering to the policy of non-engagement.

In the letter of outcome of the grievance Mr. PD has stated the following:

I acknowledge that an incident between both parties which consisted of a verbal exchange, did take place as outlined by both in their statements and related correspondence received. But as this was a one-off episode it cannot be construed as bullying or harassment which can only be considered if a previous history of related episodes is documented and reported. In this case it is not. 

I cannot disagree with this finding and therefore am unable to make a recommendation in favour of the employee.

In relation to the second complaint I note that the employee made a complaint against Mr. PD on 28th April 2021.

The Equality Officer concluded that this complaint was outside the six months period quoted in the Dignity and Respect Policy.

Contained within an email dated 11th June 2021 from a named SIPTU representative and sent to the Equality Officer was the following passage:

“As you rightly point out that the Policy, which is in line with the standard code of practice for such matters, states that complaints must be made within 6 months of the most recent incident.  Our members complaints, while stemming back to 2018 does include complaints of unfair treatment and bias, as recently as February and March 2021.  As the complaints were submitted in April 2021 and we are now in the middle of June 2021 the most recent incident(s) are well within the timeframes for investigation under the Dignity and Respect Policy”. 

Any complaint within the six months ending on 28th April 2021 has not been investigated and should now be investigated by the Equality Officer. I feel there is no need for the appointment of an independent investigator.

This is my recommendation.