ADJUDICATION OFFICER Recommendation
INDUSTRIAL RELATIONS ACT 1969
Investigation Recommendation Reference: ADJ-00030436
Parties:
| Employee | Employer |
Anonymised Parties | A Software Engineer | A Technology Company |
Representatives | Two family members | Adare Human Resource Management |
Disputes:
Act | Dispute Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00040082-001 | 26/09/2020 |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00040082-002 | 26/09/2020 |
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Date of Hearing: 06/05/2022
Procedure:
These disputes were submitted to the WRC on September 26th 2020 and, in accordance with section 13 of the Industrial Relations Act 1969, the Director General assigned them to me for adjudication. Due to the closure of the WRC as a result of the Covid-19 pandemic, it was not possible to schedule a hearing until September 24th 2021. A remote hearing opened on that date; however, the employee was not properly on notice of the hearing and another date was set for May 6th 2022. At an in-person hearing on that date, I made enquiries and gave the parties an opportunity to be heard and to set out their respective positions on the disputes.
The employee was accompanied at the hearing by his wife and another relative. The employee’s wife made an opening submission and he then set out his case, and his relative also made representations on his behalf. The employer was represented by Mr Tommy Cummins of Adare Human Resource Management. Mr Cummins was joined at the hearing by a company director and by the head of people and partnering.
On the e-complaint form he submitted on September 26th 2020, the employee provided comprehensive details about his grievances. At the hearing, his wife read a submission and I asked her to send me this document after the hearing. The employer also provided a written submission. Arriving at the conclusions I have set out below, in addition to the personal contributions of both parties, I have taken account of the written submissions provided by the employee and the employer in advance of the hearing and the documents sent by the employee after the hearing.
As the subject matter is a dispute under section 13 of the Industrial Relations Act 1969, the hearing took place in private and the parties are not named, but are referred to as “the employee” and “the employer.”
Background:
The employee is a software engineer and he joined the company on June 20th 2019. The company is a business to business provider of car rental and mobility solutions to the global travel industry. The employee reported to the director of engineering, who attended the hearing of this dispute. The employee was a member of a team that included a colleague who he claims engaged in bullying behaviour. The employee was dismissed at the end of an extended period of probation on March 28th 2020, for reasons related to his performance. He submitted two disputes for an investigation and a recommendation by an adjudication officer. These relate to the allegation of bullying and a grievance about the procedure that ended with the termination of his employment. |
CA-00040082-001: Complaint about Bullying in the Workplace
Summary of the Employee’s Case:
The employee alleges that he was subjected to behaviour that amounts to bullying in the way he was treated by a colleague. He summarised this treatment as follows: § The failure of his colleague to formally hand over a particular system that the employee was required to work on. He claims that he was “drip fed” information. Questions that he asked his colleague early in the morning were not answered until 5.00pm. § He claims that his colleague referred to their manager as “not the boss” and belittled their manager’s knowledge, putting him, the employee in an awkward position. § In an attempt to hamper his progress, the employee claimed that his colleague delayed reviewing his work and delayed giving him permission to save his work in the system. He claimed that his colleague got annoyed when he tried to “check in” his work. § He said that his colleague became aggressive and leaned over him, grabbed his computer mouse and made remarks about his work so that other colleagues could hear. When the employee tried to walk away, he said that his colleague advised him that it was just the way he operates. § After a successful performance review, the employee said that the colleague increasingly “throttled” his work, giving him tasks and then, a few minutes later, asking, “is that done?” On one occasion, the colleague said that he would not be available to answer questions, and then he asked the employee to stay back at lunch time to discuss queries. § At a meeting in January 2020 with his colleague and his manager, the employee said that his colleague belittled his work, before he had a chance to speak. He said that his colleague repeated this behaviour on February 26th. § Commenting on a project that the employee worked on, he said that his colleague said that the client is not going ahead with the project, suggesting that his work had been wasted. The employee said that, at his six-month probation review meeting in December 2019, he discussed these issues with his manager. He said that his manager arranged for the employee and his colleague to sit near him so that he could “keep an eye” on the colleague’s behaviour. At the hearing, the employee said that he was trying to pass his probation and that he was “stuck” with having to work with his colleague. On February 28th 2020, when he was informed that he was being dismissed, the employee said that he discovered that his manager had not informed the HR partner about his complaint of bullying. |
Summary of the Employer’s Case:
In advance of the hearing, Adare Human Resource Management provided a comprehensive submission, setting out the employer’s response to the grievances submitted for adjudication. At the hearing, and in response to the complaint of bullying, Mr Cummins said that the employee made no mention of being bullied when he was at his probation review meeting with his manager on December 18th. At this meeting, the employee’s probation was extended to February 28th 2020. Mr Cummins referred to the policy on bullying in the workplace which was provided to the employee when he started in the job in June 2019. This provides that an employee must make a complaint in writing, setting out the issues of concern. Mr Cummins said that there is an obligation on an employee who is contemplating making a complaint to follow the procedure. Mr Cummins reiterated that the employee did not raise a complaint about bullying at his three or six-month probation review meetings and it was only on February 28th, when his employment was terminated, that he mentioned a problem with his colleague. The employee’s line manager, the director of engineering, said that he returned from a few weeks’ bereavement leave on December 16th 2019. He had a probation review meeting with the employee two days later on December 18th. He said that he told the employee that he wasn’t willing to sign off on his probation and he said that the employee asked if this was the opinion of his colleague. The manager said that he explained that he couldn’t validate that the employee could write code, and this was the reason he wasn’t signing off on his probation. He said that, contrary to what the employee said about the colleague “blocking” him checking in his work, an employee’s work cannot be blocked, and an employee can check in code as a standalone process. At the meeting on December 18th, the manager said that he gave the employee options regarding work for the next eight weeks. He said that he gave him a choice to work on a start-up project with the person who he alleges was bullying him, or, to move to a different job with a larger team that did not involve his colleague. At the meeting, the manager said that the employee was clearly upset that his probation was being extended and he left the building. The manager said that he sent him a text message to check how he was and he sent an email to the head of people and partnering. The next day, December 19th, the manager said that he met the employee at the entrance to the kitchen area and he confirmed that he had decided to work on the project with his colleague, the person he alleges was bullying him. The manager said that, if he had been told that there was a problem with how the employee was being treated by his colleague, he would not have given him the option of working directly with him. Regarding the desk move, the manager said that this was not related to any report of bullying by the employee, but was to accommodate new staff. Addressing the complaint of bullying, the head of people and partnering said that the employee brought this up at the meeting at which he was informed that he was being dismissed. She said that she noticed that the manager was shocked and that it was clear to her that he was hearing about the allegation of bullying for the first time. She said that she asked the manager to leave the meeting so that she could talk to the employee about the issue. Summarising the employer’s position on the issue of bullying, Mr Cummins said that an allegation has been made that the manager was aware of a complaint of bullying and that he did nothing about it. He said that, in their response to the employee’s appeal of his dismissal, the employer accepted that some things were not done exactly right. Mr Cummins said that this shows that they are an employer of integrity. He said that the first time they were aware of an allegation of bullying was when the employee raised it at the meeting at which his employment was terminated. |
Conclusions:
At the hearing of this dispute, I listened carefully to the employee setting out his complaint that he informed his manager on December 18th 2019 about an allegation of bullying and that it was not dealt with. It is apparent that, from early on in the job, the employee was having difficulties getting his work done to the required standard. The employer’s submission notes that, at his three-month review on October 14th 2019, he was instructed to write more code, participate more in meetings, to engage with his team and “to change from working reactively to enable the achievement of deliverables.” While the employee attributes some of his performance issues to how he was treated by his colleague, he did not raise this at the meeting on October 14th, or at follow-up meetings on November 1st, 8th, 12th and 15th. I have examined the documents in use in the company, such as the employee’s contract, the performance review records and the response to the appeal of his dismissal and, it is my view that this company is organised and structured in its response to people issues. From the documents, it is apparent that there are at least three competent people employed in the HR department and, I am certain that, if, in December 2019, the employee had informed his manager that he was being bullied, his manager would immediately have informed someone in the HR department. A detailed note on the outcome of the employee’s six-month probation review on December 18th 2019 was provided at the hearing. This document was written up the following day and it contains no indication that the employee mentioned at the meeting that how he was being treated by his colleague was preventing him from achieving the standard of performance that was expected of him. Nothing emerged at the hearing on this dispute that indicated that there was anything to prevent the manager from bringing an allegation of bullying to the attention of the HR department. At the hearing, the manager outlined his responsibility to “unlock talent” and it is my view that, if he had known that the employee was being prevented from working to the best of his ability because of how he was treated by a colleague, he would have done something about it. The employee said that he told his manager in December 2019 that he was being bullied. He said that he mentioned it again 10 weeks later on February 28th 2020. The employee had had his probation extended and he must have been aware that his job was at risk. I find it difficult to understand why, if he had reported an allegation of bullying to his manager in December 2018, he never mentioned it again until his last day at work. At the hearing, the employee said that he didn’t bring his concerns about bullying to the attention of the HR department because he didn’t want to draw their attention on himself. This is difficult to reconcile with his assertion that he told his manager about how he claims he was being treated and that he expected his manager to inform the HR department. The behaviour that the employee complains about, for example, his colleague’s critical remarks, taking over his computer mouse, not answering his questions on time, is associated with his colleague’s response to how he was doing his job, and his efforts to complete his work. If his colleague was impatient and, if he made critical comments, this certainly makes for an uncomfortable working life, but, it is not the same as bullying, which is intended to undermine a person’s dignity at work. In the context of a new job, and a struggle to get up and running on new systems, the failure of a work colleague to provide answers and support all the time when it is needed, is unfortunate, but not unusual. The employer’s side described the availability of resources on their systems and I am satisfied that, as an alternative to the colleague he claims was critical and unsupportive, if he had asked for help, there were others on his team who could have provided support. We know that bullying is a serious affliction in a workplace and that it can undermine an employee’s self-esteem and that it is distressing and can lead to serious consequences such as illness and absence from work. This workplace had in place a comprehensive policy to deal with bullying and the employee was provided with that policy at the start of his employment. As an educated person, and, with the support of his family, I find it difficult to understand why, if he was the victim of bullying, he did not use the employer’s procedure to deal with the problem. I do not accept that, in December 2019, he told his manager that he was bullied, and I am left with the conclusion that his allegation of bullying is an effort to distract from the fact that, he was in a job that was not suitable for his skills and experience. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer takes no further action with regard to this dispute. |
CA-00040082-002: Complaint about Procedures at Dismissal
Summary of the Employee’s Case:
On his e-complaint form, and in the submission he provided after the hearing, the employee set out his grievances about his dismissal under two headings, natural justice and failure to follow fair procedures. Under the heading of natural justice, the employee claimed that he was never made aware of any issue with his performance leading up to the final probation review meeting on February 28th 2020. He said that he successfully completed all the tasks that were set out in his December 2019 probation letter and that he kept in the dark regarding any issue of concern. While the employee accepted that, from December 2019 until the end of February 2020, he had one to one meetings with his manager every Friday, he said that the meetings were never documented and he claims that the reason for this is because there were no issues with his performance. If there was an issue, he said that he should have been informed at the time, and not when his probation was coming to an end. The employee said that the end of probation meeting was sprung on him with no notice and no opportunity to be represented. He claims that, after he was dismissed, it was unfair to expect him to appeal against the decision. He said he had no colleague to attend an appeal meeting with him, because his colleague was the alleged perpetrator of the bullying behaviour. He wanted to have an outside representative, but this was complicated by the restrictions of the Covid-19 pandemic. At the hearing, the employee’s wife said that they wanted to wait until the restrictions were over so that they could have an in-person appeal meeting. Regarding the lack of fair procedures, the employee said that his line manager gave him positive feedback during the eight week extension to his probation from December 2019 to the end of February 2020. Again, he complained about the lack of documentation to inform him that he wasn’t on track. He claims that he completed all the tasks in his December 2019 probation letter and that he had commenced on a new project. He argued that the decision to terminate his employment was not lawful because it was not based on the conditions of his probation. Again, under this heading, the employee complained about the fact that the was expected to attend his end of probation meeting without notice, with no opportunity to prepare and without representation. He referred to the mixed messages given to him by his former employer by inviting him to attend a future planning session and to set goals for 2020. |
Summary of the Employer’s Case:
It is the employer’s case that the employee was fully aware of the shortcomings in his performance and that he was provided with ample opportunity to improve. In their written submission, the employer provided details of how the employee’s probation was managed, with an interim review on October 14th 2019, and a six-month review on December 18th. As the employee’s grievance is not about his performance, but about the lack of fairness in the procedures that led to his dismissal, I will not give much attention to the employer’s efforts to manage his performance. Concerning the manager’s decision that the employee did not successfully pass his probation, the manager said that he scheduled one to one meetings with the employee every Friday from January 2020 onwards, and the meeting of February 28th was in the employee’s diary. He was aware from the letter of December 18th, that his probation was due to be reviewed again on February 28th. The employee had been out sick the previous Friday, and he wasn’t at work the following Monday. On Wednesday, at what was referred to as a “show and tell” meeting, the employee was expected to demonstrate how his work was progressing and the meeting didn’t go well. Walking to the meeting on February 28th, the manager recalled the employee saying that “he knew where this was going.” Mr Cummins referred to the opportunity provided to the employee to appeal against his dismissal, and he noted that, at the hearing, the employee’s wife had said that an appeal “would have been a waste of time.” The employer’s submission shows that the employee submitted an appeal on time and was invited to an appeal hearing on March 20th 2020. The employee replied that he could not attend due to the illness of his representative. A meeting was then scheduled for April 3rd, but the employee did not attend, because his representatives were not available. A meeting was scheduled for a third time on April 22nd, but the employee replied on that day to say that, “under advice,” he could not attend. On April 28th, he was offered two possible dates for a meeting, May 8th or 14th; however, he replied that he was unwell and that he had been advised not to attend “internal process meetings.” Although the employee did not engage in the appeal process, the director of talent management conducted an investigation into his concerns about the termination of his employment, as set out in his letter of appeal on March 9th 2020. In a detailed response, she replied to each issue and concluded that, while the decision to terminate the employee’s employment was not an easy one, based on the facts, it was the correct decision. |
Conclusions:
The employee’s case is that his employer did not follow fair procedures and did not adhere to the principles of natural justice when his employment was terminated in February 2020. He was given an opportunity to appeal against the decision to dismiss him and he submitted a letter of appeal on March 9th 2020. Despite being scheduled five times, he did not attend an appeal hearing. He said that he did so “on advice,” although he did not specify who provided this advice or what it was based on. On his behalf, at the hearing at the WRC on May 6th 2022, the employee’s wife said that it would have been a waste of time to appeal. She also said that they were waiting for an opportunity for an in-person hearing when the Covid-19 restrictions were lifted. It is well established that, before submitting a grievance about any matter to the WRC, to attempt to reach a resolution of the matter quickly and with the least amount of inconvenience to the parties, an employee must exhaust the internal procedures in his or her workplace. The decision of the Labour Court in the case of Gregory Geoghegan trading as TAPS v a Worker INT1014, provides guidance on this matter, where the chairman stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is regrettable that the employee’s family took the view that they would not waste their time attending an appeal hearing at the company, but used up the resources of the WRC instead. Taking my authority from the Labour Court, as this grievance has not been aired at the level of the enterprise, I must not now insert myself into the dispute process. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer takes no further action with regard to this dispute. |
Dated: 23rd May 2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Failure to exhaust internal grievance procedures |