Complainant

Respondent

Anonymised Parties

An Employee

A Public Health Provider

Representatives

Dave Curran SIPTU

Eoin Haverty IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043664-001

19/04/2021

The dispute concerns complaints that the Respondent did not do enough to support the Complainant in pursuing her allegations of bullying in 2017 and 2018 - prior to its establishing an external investigation - and further, that it has not done enough to support her since her return to work in February 2020. The Respondent disputes and denies the complaints.  

The Complainant commenced employment with the Respondent on 1/09/1998. The Complainant stated that she experienced bullying in the workplace over a long period of time and that management did not deal with her complaints adequately or in a timely manner. The Complainant stated that she faced a hostile reaction from management when she attempted to raise her complaints in 2017 and 8018 and that one manager “warned her against reporting the issues to HR”. The Complainant cited her supervisor and to a lesser extent another co-worker as a source of her complaints.

In her submission the Complainant outlined that she experienced a range of inappropriate behaviour including shouting and aggressive behaviour, differential treatment, being constantly watched and being ignored. The Complainant stated that a number of incidents occurred between her and her supervisor on 2 and 3 November 2018 following which she submitted a letter of complaint to HR on 5 November 2018. Thereafter, she went on sick leave due to stress. The Complainant remained on sick leave throughout 2019 but submitted a more detailed complaint about the alleged bullying on 23 June 2020.

The Respondent appointed an external investigator whose report was issued on 11 December 2020. The Complainant welcomed the report of the investigator and acknowledged it was fair and impartial. The Complainant stated that the external investigator upheld her complaint against her supervisor and agreed that the behaviour she had experienced constituted bullying. The Complainant stated that the investigation did not uphold the complaint against the other employee although it described this employee’s behaviour as falling short of what would be considered an acceptable level of engagement in the workplace. In relation to the role of management, the Complainant cited a comment by the investigator to the effect that management’s response “historically suggested a lack of willingness on their part to address the nature of the non-engagement” between parties.

Following the issue of the report, the Complainant attended a return to work meeting on 10 February 2020 at which she sought to be allowed work in an area away from her supervisor. In this regard the Complainant stated that there was a “soft pack” area which she had previously worked in and she requested that she be assigned there. The Complainant stated that she also requested a move to a different department but was told that this would result in her being placed on lower pay. In addition, the Complainant requested a phased return to work on shorter hours i.e. 30 hours per week in order to assist with the stress of returning to work. The Complainant stated that none of her requests were agreed by management and that the outcome of the bullying complaint was not discussed at the return to work meeting on 10 February 2020 or at any meeting.

Notwithstanding her return to work, it continues to be the position of the Complainant that the Respondent did not do enough to support her prior to the external investigation and that despite the outcome of the investigation, this lack of support continued after her return to work. In this regard, the Complainant stated that she continues to work alongside her supervisor and continues to have issues with the supervisor. The Complainant stated that the bullying which she experienced over the years has affected her mental health and family life and that her lengthy absences from work was due to stress and anxiety. The Complainant also stated that the Respondent did not organise any follow up meetings with her and nor was she referred to occupational health. In light of what has occurred the Complainant is  seeking the following:

·         That she be compensated by the Respondent for lost earnings due to work related/stress absences;

·         That the Respondent explore any future requests by the Complainant in relation to her working arrangements or her working hours and that she not suffer any loss of wages as a result. In that regard, however, the Complainant clarified that she was no longer requesting 30 hours/week;

·         That the Respondent review its bullying policies and how bullying complaints/issues are handled in the workplace.

The Respondent stated that contrary to the Complainant’s assertion, informal mediation was facilitated in 2018 prior to the involvement of the external investigator. In that regard, the Respondent stated that mediation “was used to mend relations between the Complainant and [her supervisor/line manager and the other employee]…. and that it was agreed “that they would all treat each other with respect and be professional at all times, drawing a line under previous issues and moving on”. However, the Respondent stated that thereafter the Complainant went on a period of sick leave spanning approximately two years.

The Respondent stated that it appointed an external investigator following receipt of the Complainant’s letter of 23 June 2020. In this regard the Respondent acknowledged that the complaints against the Complainant's line manager/supervisor were upheld but stated that the complaints against the other employee were not.

The Respondent stated that upon the Complainants return to work she was provided with a schedule for a phased return but that through “nobody’s fault” this could not be facilitated as the selected trainer had a bereavement. The Respondent stated that the Complainant was placed “in a buddy system to allow refresher training to take place”. With regard to the Complainant’s request to move work area the Respondent agreed that this request was refused as it was unable to facilitate a  “bespoke schedule” for the Complainant. In this regard, the Respondent referred to the Complainant’s work role which required to be rotated throughout all areas of the organisation. The Respondent further stated that allocation to the soft pack area – as requested by the Complainant - can be made based on an individual’s medical needs but that the requirement for this section has been reduced due to alternative purchasing arrangements. Consequently, the Complainant’s request to move to the soft pack area could not be facilitated.

The Respondent stated that following the external investigation, local management engaged with the Complainant but that no issues were expressed by her. That Respondent also stated that the “Complainant was told that the roster could not be specific to one individual, in that it had to workfor the entire Department being fair and equitable to all staff”. In response to the Complainant’s request to work 30 hours per week, the Respondent stated that “Unfortunately, due to staffing challenges, the Complainant was not offered this arrangement but was offered 19.5 hours as this was the only solution available to the Respondent at the time”. At the adjudication hearing, the Respondent clarified that it would not get a part time replacement for 10 hours/week but that it would be easier to do so for 19.5 hours/week – ie half the working week. The Respondent also pointed out that a part-time post was advertised in October 2020 but that the Complainant did not apply for it.

In relation to pay, the Respondent stated that it has fully complied with its sick leave policy which affords employees three months sick leave absence on fully pay and a further three months sick leave on half pay.  In that regard, the Respondent outlined a summary of the Complainant’s absences from 15 March 2018 until 9 November 2018 which it stated were fully paid and between 17 May 2021 and 23 February 2022 which it stated were also fully paid with the exception of the period from 10 November 2018 until 12 October 2020. The Respondent also stated that the Complainant would have been in receipt of social welfare payments.

It is the Respondent’s position that all issues raised by the Complainant have been addressed. Further, the issues raised by the Complainant in her WRC complaint relating to the period post the external investigation, had not been pursued by her through the Respondent’s internal grievance procedure.

I have considered the submissions and documentation in relation to this matter including the reports of the external investigator.  From the information provided I am satisfied there were attempts to mediate a resolution between the parties in 2018 – though I accept views differ on the effectiveness of these. Whilst the Complainant is critical that her complaints were not dealt with prior to 2018, it is a fact that at all times the onus rested on her to submit a written complaint in order to trigger an investigation – which ultimately is what occurred. From the submissions, I am satisfied that investigation was thorough and fair.

The Complainant returned to work on 27 January 2021 and the first week was three days @9-3pm but from week 5 – ie 1/2/21, she had returned to the usual 39 hour week. The Respondent has outlined the logistical problems it faced in terms of the Complainant’s specific role and in dealing with her request to move to the soft pack area and/or a different department and/or reduce her hours to 30/week. Notwithstanding, I consider that it cannot have been easy for the Complainant to return to the same working arrangements including working with the person who the external investigator deemed had engaged in “a repeated pattern of inappropriate behaviour” towards her. In all the circumstances, I am satisfied the Complainant was not afforded sufficient support on her return to work in January 2021 and that the Respondent failed to adequately communicate with her during this time.  Having gone through a lengthy investigation where her complaint was upheld, I do not consider – particularly in the immediate aftermath of her return to work - that the Complainant should have been put in a position where the onus fell on her to submit fresh complaints relating to the same issues. In the alternative, for the post return to work period, the Respondent should have engaged in ongoing pro-active communication with the Complainant in terms of supporting her during this time. This should have included facilitating a longer phased return to work period and/or  a meaningful review of her working arrangements, without a reduction in pay. In light of these conclusions, I make the below recommendations.

Lastly, in terms of compensation for loss of earnings, I consider that the Complainant was entitled to avail of the sick leave provisions in accordance with her terms of employment and I make no recommendation in this regard.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

·         That in accordance with its usual and established processes of engagement with the trade unions/staff representatives, the Respondent review its Grievance Procedures and Dignity at Work policies in accordance with the revised Code of Practice on how bullying should be prevented and managed in the workplace – as per Statutory Instrument No. 674/2020;

·         That the Respondent engage with the trade unions/staff representatives in order to proactively address what practical supports and assistance can reasonably be put in place to support persons who have been bullied in the workplace and to identify appropriate training for line managers in that regard.

Bullying in the workplace; SI No. 674/2020