ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00034132
Parties:
| Complainant | Respondent |
Anonymised Parties | A Support Worker | Development Organisation |
Representatives | Self represented | Mairead Crosby Ibec |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Industrial Relations Act 1969 | CA-00044791-001 | 25/06/2021 |
Date of Adjudication Hearing: 27/04/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 13 of the IndustrialRelations Acts 1969following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant contends that an investigation and appeal in relation to complaints she made about bullying and harassment were not conducted in a proper and timely manner. |
Summary of Complainant’s Case:
The Complainant stated that she made a complaint against her line manager and a co-worker in June 2020. After some time an external investigation took place. She has a number of complaints about the investigation, including the fact that the Investigator did not include her comments in the body of his report. She submitted that the timeline of events was unacceptable. She made her complaint on 16th June 2020. She left the employment on 30th June 2020. The External Investigation Report was not produced until 11th August 2020. Then her line manager appealed on the basis that the Investigator should have found that the Complainant’s complaint was vexatious. The Complainant contends that this was an abuse of process, the appeal not having been made on the basis of process. The appeal process then took some 7 months to be concluded. The appeal report then twisted the situation by stating that the Appeals Officer found that the Investigator should have found that there was insufficient evidence and the allegations were unfounded. The Complainant is dissatisfied that the terms “unfounded” and “unsubstantiated” are perhaps misunderstood or deliberately misconstrued. The Complainant wishes for a fresh investigation to be carried out. |
Summary of Respondent’s Case:
The Respondent received a formal complaint of bullying and harassment from the Complainant on 16th June 2020. She rejected mediation prior to this. The Complainant was employed on a fixed term contract which expired on 30th June 2020. The Respondent engaged an external investigator to carry out an investigation into her complaints. The investigation followed a thorough process and found that there was inconclusive evidence to conclude in favour or against the Complainant. An appeal process was conducted by the CEO. In relation to the procedures used to investigate this complaint, the Company adhered to its Anti Bullying Policy and the Terms of References agreed from the outset of the process. The claimant was afforded all benefits of fair procedure, in line with the Company’s policy and the universal principles of natural justice. Considering all of the above, it is the position of the Respondent that the whole process, from the investigation to the appeals was procedurally fair in all respects. In line with the Code of Practice on prevention and resolution of bullying at work, the Respondent has an anti-bullying policy in place to try and mitigate this behaviour at work. Once the Respondent was made aware of this complaint, they acted reasonably to address this in a fair and impartial manner by involving an external investigator. Both the investigation process and the appeals process were governed by the Terms of Reference which were agreeable to all parties prior to either process beginning. Throughout the process, the investigator conducted the investigation in line with the terms of reference and the Company’s anti-bullying policy which are informed by fair procedure and the rules of natural justice. In the final investigation report, the Investigator outlined that he came to his findings based on the facts that were gathered through the meetings with the parties involved and other witness statements, based on the balance of probability. With regard to the appeal process, this was conducted by the CEO who was completely independent of the investigation process. It is the position of the Respondent that it is the role of the Adjudicating Officer in this instant case to determine whether the process of investigation was procedurally correct as opposed to a re investigation of the original complaint. The Respondent seeks to rely on the case of Medical Specialist v Health Services ADJ-00012682, where in a similar case the Adjudicating Officer found “the Respondent is complying with the agreed Dignity at Work Policy..” The Respondent refers the Adjudicating Officer to the case of Tesco V Shaun O’Brien (LCR21879), where the Labour Court stated that it was not in a position to carry out its own investigations into allegations of bullying and harassment. It was further stated that the Court will always be mindful, in reaching its conclusions, of the rights of all parties to the natural justice protection of ‘audi alteram partem’ –the right to be heard before a judgement can be made. The Court could not say whether or not the behaviour of the manager goes beyond ‘inappropriate’. All the Court could do is note that two separate investigations had taken place and that both reached the same conclusion that the manager’s ‘inappropriate’ behaviour fell short of bullying and harassment. The Court did not propose to substitute its opinions for that reached by the people who conducted the investigations. The Respondent submits the Complainant’s complaint cannot be upheld. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
This dispute concerns the Complainant’s objections and dissatisfaction around the process and substantive findings of external investigation and appeal reports into her complaints of bullying and harassment. I note the extensive terms of reference governing the investigation and the detailed transcripts and contents of the investigation report. I conclude that the investigation process was followed in accordance with agreed and long established principles of natural justice.
Having considered the evidence, documents and submissions in this case, I note that the Complainant does not accept certain elements and findings. However, I find that the investigation and appeal process carried out complied with the widely accepted procedures for investigating complaints and I therefore do not recommend that a fresh investigation is warranted into the Complainant’s complaints.
Dated: 27-06-22
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Bullying and harassment procedures objections not upheld |