ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00038273

Parties:

	Complainant	Respondent
Anonymised Parties	An Employee	A Department Store

Complaint:

Date of Adjudication Hearing:

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/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background:

The Complainant referred a complaint under the Act regarding a workplace incident in August 2020 where he alleges one of the owners of the business approached him on the shop floor and, in front of customers and staff told him that he was the subject of a bullying complaint.

Summary of Complainant’s Case:

The Complainant worked as a Buyer/Manager for the shop from 6 November 2006 to 9 August 2021. He was therefore working for the Respondent for in or around 15 years, the last year he was on sick leave due to stress caused by the Respondent who had accused him of bullying. He considered this to be defamation and was pursuing a case for defamation. However, as he could not pursue that action due to various reasons, he was now seeking to have his case heard by WRC. He stated that on 29 August 2020 he was approached by one of the owners who said to him, in front of customers and staff that there 2 complaints of bullying against him. He was shocked as one of the staff who was mentioned did not even work with him. He went out sick and submitted doctor’s certs from 1 September 2020. He resigned his employment on 9 August 2021 and took up another job on 25 August 2021. The Complainant stated that he was never given any policies from the Respondent around bullying & harassment. He stated that he was not given the opportunity to defend himself. He was shocked and horrified at the treatment he received. He also stated that when he left the employment, he asked for all monies, annual leave payment etc to be sent to him. He received no response.

Summary of Respondent’s Case:

The Respondent stated that they were a small family owned business in business for over 75 years and some staff were with them for over 30 years. This was the first time they ever had to deal with a problem of this nature. The Respondent stated that the account that was given by the Complainant was completely fabricated. It was he who approached one of the owners on the day in question and asked him was there a bullying complaint against him.

On 9th October 2020 after receiving a solicitor’s letter on behalf of the Complainant, the Respondent offered to meet with him to thrash out what issues there were. In fact the owners made many attempts to contact the Complainant but all to no avail. The Respondent stated that they had many complaints about the Complainant, that they had numerous examples of bad buying, stock problems and bad attitude. The staff member in question who had made the complaint had been seen crying and had been caused stress by the Complainant, such that an ambulance had to be called one day for her. The Respondent had nothing but compliments about her work and the work of others in the shop. One of the owners of the business stated that it was a small business, with no experience of bullying & harassment and was generally a happy place of work.

The staff member who was alleged to have complained about the Complainant stated that she did tell one of the owners that she felt pressurised by the Complainant. She worked 3 days a week and he wanted her to work an extra day which caused her stress and heart palpitations such that an ambulance had to be called to the shop one day for her.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I note that the Complainant initially sought to pursue a defamation action against the Respondent and then when that avenue was closed off, decided to refer the matter to the WRC under the Industrial Relations Act. The Complainant also wished to have addressed the failure on the Respondent’s part to pay him monies due on the cessation of his employment. If the Respondent owes the Complainant payment for annual leave not taken, or any other payment due, then this should be paid.

The Complainant did not advance an argument or submit a complaint under the Unfair Dismissals Act 1977, that he was ‘constructively dismissed’, meaning that he resigned because of the unreasonable conduct of the employer. The Complainant referred the matter as being relevant to ‘bullying & harassment’ procedures, or lack thereof in the employment. I note that the employer in this case is a small family run business. However, even small employers have an obligation under Statutory Instrument 146/2000 to give their employees the opportunity to state their case in the event of allegations made against them. In this case, while there was some conflict of evidence as to who said what to whom, nevertheless, there was some altercation which caused the Complainant stress and resulted in him leaving his workplace and never returning. I note that the Respondent made some attempts to contact the Complainant and have the matters ‘thrashed out’, notably in their letter to the Complainants solicitor on 9th October 2020. The Complainant ought to have given the Respondent the opportunity to state the case as the Respondent ought to have done likewise or more formally sought agreement to mediation between the two staff members.

In the circumstances I find that there was a deficit of actions on both parties in the handling of the dispute between them. In order to draw a line under the issues, I recommend that the Respondent pay to the complainant whatever monies are due to him on cessation of his employment, and as a mark of closure in full and final settlement of any action against them, which should be agreed by him in written format, pay him a sum of €2,000.

Dated: 30th May 2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Industrial Relations Act, Bullying & Harassment lack of procedures.