Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

  In person

Thomas Ryan, Peninsula

Act

Dispute Reference No.

Date of Receipt

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

11/08/2020

This IR dispute is that the Complainant left her employment, after fifteen years. She resigned her position after raising grievances with the Respondent. She submits that during the Respondent grievance process, the terms of the grievance policy were not adhered to and the process took 14 months to complete. The unfair manner in which the process was carried out together with the excessive time it took to complete, broke the trust and confidence that Complainant had with her Employer and she resigned.

These initial dispute between the Complainant and the Respondent started as a pay dispute but it developed into a series of grievances concerning pay, allegations of bullying, poor line management, failing to address the Complainant’s work concerns in accordance with agreed grievance procedures, failing to conduct a grievance in a timely manner and having inherent bias within the grievance process.

In purporting to address the Complainant’s concerns, the  grievance process as undertaken by the Respondent lacked fairness to a such an extent that it became a grievance process in name only. At the end of the process the Complainant felt that the process had been a disingenuous exercise and it was this that ultimately broke the Complainant’s trust and confidence in her employer.

The Complainant started working for the Respondent on 29 March 2005. The Respondent is a community development organisation which works with Travellers. The Complainant’s employment came to an end on 14 February 2020, when she resigned her post.

She contends that the grievance process that she engaged with in good faith was replete with breaches of fair procedures.

Persons against who complaints were made and those closely associated with these persons were involved in the investigation of the Complainant’s grievance and for this reason the process was unfair and its outcome, unsatisfactory.

When the Complainant raised a grievance informally first, nothing at all was done. When she reformulated it as a formal grievance the time that it took to conduct the process were not in accordance with the Respondent’s grievance policy. An independent investigator was then appointed to conduct the grievance hearing (Graphite) but this appointment had not be agreed with the Complainant as the Respondent grievance policy requires. A grievance meeting that took place on 14 February 2019 following which the investigator upheld some of her complaints, but the Complainant was dissatisfied with the investigator’s process and findings.

The Respondent offered her an option to appeal the investigator’s findings but the person who was appointed to conduct the appeal (MM - the chair of the board) also worked closely alongside the Complainant’s line-manager, against whom the Complainant had brought the bullying complaint. In other words, the appeal of the independent investigation reverted to an internal appeal but the appeal officer was compromised. Furthermore,  MM was married to an employee (MM2) of the Respondent who in the past had shouted at the Complainant (an incident which led in part to the Complainant bringing her grievance against her line manager - for her line managers failure to adequately reprimand MM2 for the incident) The proposition that MM was an impartial arbiter in such circumstances was simply not credible.

All in all, it was highly improper and inappropriate that MM was the person appointed by the Respondent to conduct the appeal of her grievance outcome.   Apart from the prima facie unfairness and bias of MM for reasons stated above, the Respondent’s grievance policy also stated that an independent arbitrator the appointment of which was agreed with the would conduct the grievance hearing. From this it should have followed that the appointment of the appeals officer should have agreed it was not. The fact that the independent investigation was being appealed to a person who was either married to or had a close working relationship with persons against whom the grievances were brought, undermined the integrity of the grievance process.

The Complainant contends that while she may not have had sufficient reason to leave her employment at the start of the grievance process (she accepts that her grievances did not give her a sufficient basis to leave) by the time the grievance process came to an end, because of the way the unfair process, particularly the appeal,  she had no option other than to leave the job.

In response to the Respondent’s point that the Complainant failed to exhaust internal remedies before resigning, the Complainant responds as follows: 

Faced with an eleventh hour offer by the Respondent to adjourn the appeal hearing and appoint an alternative appeal officer, the Complainant felt bounced into continuing with the hearing. She did not want to delay further what had already been a long-delayed process. She contends that appointing an appropriate person to conduct the grievance appeal was a matter for the Respondent and for her to agree with. Neither obligation they had discharged. She should not be penalised for not wishing a further delay in the process. Particularly when her representative had advised the Respondent well in advance of the appeal hearing that MM was biased and was not an appropriate person to conduct the appeal, however this correspondence was ignored by the Respondent.

In response to the Respondents’ submission that the Complainant failed to avail of a mediation offer following the appeal, the Complainant says that, by that point, she had lost any hope of fairness given what had happened and it was reasonable to assume that nothing of benefit would come out of a mediation process. The process had been unfair and defective, she said as much but the Respondent did not accept this. There was nothing that mediation could remedy.  She had reached a point of departure when the appeal decision was made endorsing the investigation findings. It was at that point that she thought the whole process had been disingenuous.

Given the fact of the bias that was inherent in the grievance process from the outset, the negative outcome for her was pre-determined and following this she had no option but to consider her contract to have been terminated by the Respondent’s unfair conduct.

The grievance originated as a pay dispute however, the Complainant’s pay was not within the Respondent’s remit to increase. The Respondent tried to but was unable to increase the Complainant’s salary. Funding for the organisation was restricted and was still impacted by the public pay freeze following the 2008 economic crash.  The Respondent points to the fact that every effort was made to advocate for a salary increase on her behalf, but the funding was not available. Ameliorative steps were undertaken by the Respondent namely that the Complainant pay was maintained but she worked reduced hours. However, while the Respondent wanted to obtain funding to increase the Complainant’s wages, management consistently denied that the Complainant was entitled to be paid on a higher grade in the absence of having higher educational qualifications.

The Respondent denies that the grievance process was flawed. The Complainant’s line manager initially dealt with her complaints informally. Then when complaints were made against her the line manger stepped away and stayed away from the process. After the Complainant raised a formal grievance the Respondent went to considerable expense, which it could not afford, to engage Graphite to conduct an independent investigation. This investigation was thorough, independent and fair and upheld the Complainant’s grievances in part. The appeal which followed the investigation was all the Respondent could afford and was fair. The chairperson who conducted the hearing did so impartially and just because the Complainant was unhappy with the appeal outcome does not render it to be an unfair process.

The Complainant’s assertion that the grievance appeal outcome was predetermined is denied.  At all stages the Respondent attempted to genuinely sort out the Complainant’s concerns but every time an outcome went against the Complainant this prompted another grievance complaint to be made.

At all stages of the grievance process the Complainant had the benefit of her trade union representative. She was not isolated as she suggests.

The Respondent appointed an independent investigator to deal with the Complainant’s grievances and this accorded with the Respondent grievance policy process, however when the Complainant appealed the outcome the Respondent simply did not have the funds for the appeal process to be conducted by another third party. The Respondent is an organisation with limited financial resources. It was necessary that an internal person be used for the appeal and Peninsula advised that this would be appropriate. The chair of the board was chosen to conduct the appeal because he always had enjoyed a very good working relationship with the Complainant. The Complainant was asked if she was happy with his appointment and she said that she was. In fact, at the appeal hearing she stated that “she would trust MM with the keys of her house.” The Respondent in good faith. MM was an appropriate person to conduct the appeal and the correspondence from the Complainant’s representative objecting to his appointment was not noticed until the day of the appeal hearing and was never raised by the Complainant herself directly.

Every step that could have been taken to assist the Complainant during the grievance process was taken. The process did not contain an appeal option but one was offered because the Complainant had been unhappy with the fact that she had not been asked to agree the appointment of the investigator as per the grievance policy. It was because of this that an additional layer agreed to be added to the grievance procedure, which was the appeal. 

Despite the criticisms that the Complainant is now laying at MM’s appointment, these were only stated after he decided the appeal - an outcome that did not accord with the result that the Complainant wanted. The allegation of bias against MM are denied. The Complainant’s grievance was against the Complainant’s line manager for failing to adequately reprimand MM’s wife when she had shouted at her. No bias arises in such circumstances.

The Complainant failed to exhaust internal remedies before deciding to resign her post and this failure was unreasonable (and defeats her complaint of unfair dismissal) because (a) she did not warn the Respondent of her intention to leave if the appeal outcome went against her (b) she failed to agree to a postponement of the appeal hearing to appoint a fresh chairperson when asked and (c) she failed to engage with the option of mediation following the appeal outcome.

The manner in which the Complainant’s grievances were dealt with arose out of the limited resources of the Respondent and, the process overall was fair and reasonable. The assertions that the appeal was flawed fall very far short of amounting to a constructive dismissal and had the Complainant agreed to mediation, it was likely that the issues that led to her bringing the grievance in the first place could have been ironed out.

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

The origins of the Complainant’s dispute with the Respondent lay in the pay issue. It was the dispute over pay that was the spark which started the Complainant’s grievance which was then added to, as time went on. 

The Complainant brought a grievance against her line manager in respect of her incorrect pay grade. She then also raised a complaint of bullying and intimidation and that work place incidents were not adequately dealt with by her line manager. She complained that the grievance process was taking too long (it took 14 months to conclude) As time went on the grievance process became a rolling one which grew as the relationship between her and her employer deteriorated.

I accept why this dynamic developed. The fact that the grievance investigation was protracted did not help matters. But I note too that rolling/ growing grievances can be difficult for a small organisation to manage for two reasons (1) there are a growing number of grievances to investigate and (2) the higher up one’s complaints are directed, the more difficult it becomes for the Employer to identify an appropriate person to consider and decide the grievance outcome without the expense of referring the matter to a third party.

In my view the Respondent correctly adhered to its grievance policy when it appointed an external investigator to investigate the Complainant’s grievances. I realise that this appointment should have been agreed with the Complainant but this failure was not in my view fatal to the investigation that followed or the findings of the investigator – which upheld her grievances in-part. I am critical however of the length of time that it took for this investigation to conclude and I think this compounded the worsening work relationship.

When the investigation outcome was issued – it is my view that the Respondent, then would have been free to inform the Complainant, as unhappy as she may have been, that the investigator’s findings stood and were to be considered as the end of the matter. But this is not what occurred. There was no obligation on the Respondent to conduct an appeal, and yet that is what the Respondent decided would occur. This was done most likely done in good faith to demonstrate to the Complainant that they were responding to her concerns.

However, the appeal process was quite calamitous from a fair procedures point of view. It was entirely inappropriate that MM was appointed as the appeals officer. Not only did he have a working relationship with the Complainant’s line manager, against whom a grievance had been brought but his wife had also been involved in an argument with the Complainant which led in part to the grievance against the Complainant’s line manager being made. If not actually biased, it is impossible to escape the assertion that MM could reasonably been perceived as biased and who therefore should not have the appeal officer.

Once a decision was taken to conduct an appeal this should have been conducted in accordance with the Respondent’s grievance policy and an independent person with whose appointment the Complainant agreed should have been appointed. And if the Respondent could not afford this, its grievance policy did not oblige it to conduct an appeal.  However, what the Respondent was certainly not entitled to do was to decide that the Complainant had a right to appeal the investigator’s findings and then conduct an appeal the process of which was manifestly unfair.

I do not accept that the Respondent’s claim that the Complainant agreed with the appointment of MM. The correspondence produced during the adjudication indicated that the Complainant’s legal representative expressly objected to MM, weeks before the appeal hearing.

Furthermore, I do not consider that the Respondent’s last-minute suggestion to adjourn the hearing to allow for an alternative appeal officer to be appointed, can save the Respondent. Or that the Complainant’s failure to agree to this at the hearing should be used against her. This was a difficult process, I have no doubt that the Complainant was anxious as she went into the hearing that morning. I expect that she was looking for anchors that she could have faith in. She liked MM. Besides, the question is not an issue of conscious bias of MM. It is rather that, given his connection to those involved in the investigation, he should never have been considered as a suitable candidate as appeal officer because of the perception that he could be biased.   No reason was provided at the IR Adjudication hearing as to why the Complainant’s request to replace MM with a non-biased party was not noticed by the Respondent before the appeal hearing started. The first time this offer was put to the Complainant was as she was sitting across from MM as the appeal was about to start.  It would have been difficult for her to agree to his replacement, in such affronting circumstances. For these reasons I do not accept that the Complainant’s assent to proceed that day in those circumstances, constituted a failure by her to exhaust internal remedies.

It was noteworthy that she went into the appeal hearing that morning thinking that her representative’s request had simply been ignored. No explanation was provided at the Adjudication hearing as to why this request remained unnoticed until the morning of the appeal. Such an oversight would not be normal conduct in a conscientious employer and I believe that this led into the Complainant’s belief that the outcome was pre-determined.

And with regard to the assertion that the Complainant failed to avail of the offer of mediation I am of the view that the contract was already broken when this offer was made. It was the appeal process - not its outcome but how it was conducted - that breached the Respondent’s grievance policy and rules of fair procedure.

The flaws in the appeal process were manifest and I am satisfied that these flaws allowed the Complainant to form a reasonable belief that the appeal was not genuine, that the Respondent wanted the grievance process to end, that her grievances were ultimately not important and that she was not valued in the workplace.

Had the Respondent not conducted an appeal – and (as already stated) it did not need to, or, had the appeal been conducted fairly, the outcome of this decision might well be other than it is. However, the Respondent decided to conduct an appeal and in doing so it should have ensured that fair procedures were applied throughout.

I am satisfied that, given the conduct of the appeal, it was reasonable for the Complainant to terminate her employment. I accept that she reached a point where she felt manifestly undervalued in the job, given her years of service to the Respondent and given that the board members (who she had respected) saw no difficulty conducting a manifestly unfair appeal, it became her view that the Respondent management no longer valued her. I am satisfied that her belief that her employment had become untenable was reasonable and I accept that she lost trust and confidence in her employer as a result of how her grievance was dealt with.

I find that this complaint was well founded.