ADJ-00034835

Employee

Employer

Anonymised Parties

A Senior Executive Officer

A Local Authority

Representatives

Maura Cahalan, Fórsa

The Local Authority’s HR Department

Act

Dispute Reference No.

Date of Receipt

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

CA-00045916-001

01/09/2021

SEO joined the Council in 1990 and in February 2018, he took up a grade 8 role as acting senior executive officer in a specific geographic region of the Operations division.  He occupied this “acting” role, pending a competition for a permanent vacancy.  The reporting structure has changed, but at the time, this was the organisational structure in Operations:

Director of Services

Senior Executive Officer “SEO”

Administrative Officer

District Supervisor “SU”

In October 2019, SEO, his manager and the administrative officer who reported to him were the subject of a complaint of bullying by a district supervisor, who I will refer to as “SU.”  The Council appointed an independent consultant to enquire into SU’s complaints.  Before the investigation was finalised, SU was permitted to retire early.  He refused to withdraw his complaint that he had been bullied, but he withdrew his request for a formal investigation into his complaints.  The Council did not conclude the investigation.  

Fórsa argues that the Council’s failure to conclude its investigation results in an injustice to SEO, as the complaints have not been withdrawn and he has not been cleared of the allegation of bullying.  He invoked the grievance procedure to address this failure and he sought an external investigation into the handling of SU’s grievance by the HR department.  He looked for confirmation that SU’s complaints are withdrawn, or he asked the Council to conclude its investigation and to issue findings.  The Council refused to investigate SEO’s s grievance.  Now that this matter has been referred to the WRC, Fórsa is seeking a recommendation that the Council should complete their investigation into SU’s complaints.

Chronology of Events

Based on the submissions of both sides, the following is my understanding of the chronology of events from September 2019 until January 2021, when SEO submitted a grievance to the Chief Executive Officer (CEO) of the Council. 

Some time in the early part of September 2019, the administrative officer who is SU’s direct manager complained to SEO about the tone and content of SU’s conversations and correspondence with her, which she considered to be curt, dismissive and undermining.  SEO brought this to SU’s attention and reminded him that failure to comply with instructions from a more senior member of staff may be dealt with in accordance with the disciplinary or grievance procedure.

On September 30th 2019, SU met HR1 and gave him 130 pages of documents, mostly comprised of copies of emails between him and SEO, the director of services and his line manager.  It is apparent that SU considered that these documents were evidence of a campaign of bullying by the three managers.  The next day, he requested a formal investigation into his complaints.  After discussions with HR1, he said that he would be amenable to an informal resolution.  HR1 spoke to SEO about SU’s complaints and about his preference to resolve his grievances informally.  By October 9th, when SEO had not contacted SU, SU again requested a formal investigation.  Terms of reference for a formal investigation were agreed with an independent consultant.  On October 19th, SU was informed that the external investigator would investigate his complaints and on October 23rd, SEO and his two colleagues were also informed about the appointment of the independent investigator. 

In early November 2019, the Director of Services, who was the most senior of the three managers about whom SU had made complaints, offered to meet SU to try to resolve matters informally.  It is uncertain if SU attended a meeting.  HR1 said that he attended a meeting at which the senior manager took notes but made no suggestions to improve matters.  Copies of emails submitted by Fórsa indicate that SU did not attend any informal meetings.  At the end of November, a HR officer wrote to SEO telling him that,

“(SU) has the right to seek a formal investigation and the process has now commenced with establishing the specific details of his alleged grievances which will be forwarded to you and the other affected parties.”

In December 2019, the independent investigator issued a note of SU’s complaints to the HR department.  The Council’s submission states that SU’s “voluminous grievances” were summarised by the investigator in a list of 24 specific grievances.  A redacted copy of the grievances was sent to SEO and his two colleagues.  SEO met the consultant in January 2020.  In March, he was informed by the HR officer that SU had submitted 12 new allegations.  On April 29th, he was informed that he would be transferred to a different region in the operations division, because of the strained relationships in his department which were considered not “helpful in dealing with the professional and personal challenges presented by the current crisis” and in the interest of his health, safety and welfare.  SEO objected to the transfer, but on June 22nd, the CEO wrote to him and confirmed that it was being done in the context of the health, safety and welfare of all concerned and that it would take effect from the following Monday. 

On June 25th 2020, SEO sent a long letter to the CEO, in which he set out his concerns about how SU’s grievance was being managed by the HR department.  He also questioned how the HR department concluded that there was a risk to his health and safety or that there was a crisis in the operations department.  He had not raised these issues and they had not been raised with him.  The CEO replied the following day and confirmed that “the re-assignment will go ahead as planned.”  The two colleagues against whom SU made complaints were also transferred.  In April 2021, the “acting position” that SEO had occupied before his transfer was filled on a permanent basis and, with effect from April 6th 2021, SEO was moved out of his “acting” grade 8 position to a grade 7 position as an administrative officer. 

In July 2020, SU went on extended sick leave.  The investigator continued his investigation and interviewed six witnesses.

On September 8th, the HR department informed SEO and his colleagues that the investigation would be finalised soon.  However, on September 22nd, SU submitted new allegations against SEO and his colleagues, and also against a fourth manager.  He requested that his complaints be investigated under the heading of the Council’s bullying procedure.  At the end of September, the HR manager dealing with the grievance wrote to the director of HR recommending that a formal investigation be carried out into SU’s complaints of bullying between January and July 2020.  The CEO agreed to this approach and advised that all the parties should be informed.

On October 1st 2020, the independent consultant wrote to SEO, providing him with copies of his accounts of meetings with SU and other witnesses, and asking for his written observations, with reference to particular events and incidents raised by SU.  On October 2nd, the HR department advised SEO that SU had raised further complaints and that these would be referred to the independent consultant for investigation.  On October 9th, in discussions with HR1, SU stated that he wanted to retire.  On October 12th, in an email from a member of the HR department, SEO was informed that,

“The complainant has now retired and consequently the investigation and proposed further investigation of the matters will proceed no further and are now closed.”

The Council’s submission notes that SU “was adamant that he was not going to withdraw his allegations as he was not a liar.”  He agreed to withdraw his request for his grievances to be investigated.

SEO wrote to his manager asking to be reinstated to his former geographical area.  On October 16th, he wrote to management asking them to confirm that the allegations of bullying made by SU were withdrawn.  He was informed that the investigation would not proceed.  Later, he was informed that the independent consultant was no longer engaged by the Council.

On November 17th, SEO wrote to the CEO asking for confirmation that all the allegations made by SU against him were withdrawn.  Alternatively, he asked for the independent consultant to be re-engaged so that the investigation could be concluded.  In response, on December 1st, the director of services, corporate affairs and governance wrote to SEO as follows:

“It is only where an investigation has taken place and findings have been made that the Council will consider and form a view on the allegations made.

“In this case, the complainant has withdrawn the request for the allegations to be investigated.  Consequently, there are no allegations to be investigated by (the Council).

“As previously advised, there has been no investigation nor have any findings been made in this case.  I can confirm that there will be no consequences arising from the allegations submitted and no record in relation to the allegations will be held on your personal file.”

On December 10th, SEO was provided with a copy of an extract from the termination agreement drawn up by the Council and agreed with SU.  The agreement stated that:

“The request by (SU) submitted on 01/10/2020 to have allegations of bullying investigated is withdrawn.”

“The request by (SU) to have a series of grievance complaints investigated and reported on by (the independent consultant) is withdrawn.”

On January 15th 2021, SEO lodged a formal grievance with the CEO.  He claimed that, in the way SU’s complaints were handled, the HR department contravened the Council’s grievance policy from the outset.  He claimed that his assignment to a different operational area was prejudicial and unwarranted.  He complained about the refusal of the HR department to allow him to return to his original position and their failure to complete the investigation into SU’s grievance.  He claimed that the provisions of SU’s termination agreement allowed SU’s “unfounded allegations to remain against me in perpetuity and facilitated the complainant re-activating his complaints at any time and in any forum he chooses.”

On January 29th, the CEO replied.  She said that she had reviewed SU’s grievances and she found that there was evidence that the approach taken by the HR Department was to ensure that the matters were systematically investigated in a balanced way and in the interests of fairness to all parties.  She decided that the requested external investigation was not merited.

SEO resigned on February 6th 2022, having worked for 32 years with the Council.  He was appointed to a senior position in another local authority.

On October 23rd 2019, when SEO was informed that SU had submitted a grievance about him, he was not given a copy of SU’s written complaint of October 1st and neither he or his union were consulted about the terms of reference for the investigation or the appointment of an investigator.  It is the union’s case that by failing to attempt to resolve SU’s grievance at a local level and in an informal manner, the Council has breached section 9.5 of its Grievance Procedure.  A copy of the procedure was provided in advance of the hearing of this dispute.  Section 9.5 provides as follows: 

“The primary approach is that the grievance issues are, where possible, resolved at local level as close to the dispute as possible, in an informal manner as set out in this policy.”

The informal approach recommends that, at the first stage of the procedure, an attempt at resolution of a grievance should be tried between the employee and his or her manager.  Where this effort is not successful, the parties are encouraged to try mediation or alternative dispute resolution.

The terms of reference drawn up by the Council offered no scope for a facilitated or mediated outcome to the grievance and the investigation was open-ended and “could be extended to cover any matter that has a direct bearing on the aforesaid.”

Although he was unaware of the specific details of SU’s complaint, SEO made several attempts to discuss the issues informally.  SU was offered the opportunity for mediation, facilitation, an informal meeting with someone taking notes and finally, an informal meeting between all the parties concerned.  SEO and his colleagues invited SU to a meeting on November 20th 2019; however, he did not attend.

In contravention of clause 12.2 of the Grievance Procedure, prior to the HR department agreeing to have SU’s complaint investigated by an external consultant, it seems that the grievance was not recorded in writing.  Through his request under the Freedom of Information regulations, SEO learned that the formal stage of “examination” of SU’s grievance was not carried out and there is no record of a recommendation to proceed to an examination by an external consultant.  The HR department proceeded to a formal investigation without giving any consideration to mediation or alternative dispute resolution processes.

SU had two meetings with the consultant on November 22nd and December 13th 2019 and, following these meetings, on December 16th, SEO received details of SU’s grievances.  He was amazed that what he considered to be relatively minor issues required the initiation of a formal investigation.  It is his view that the issues could have been resolved through informal means or by mediation.  An official from the HR department wrote to SEO stating that the process “has now commenced with establishing the specific details of his alleged grievances which will be forwarded to you and the other affected parties.”  At that stage, the HR department was unaware of the details of SU’s grievance and it is SEO’s view that they “used the process to create the formal grievance for (SU)…”  Although SEO was informed about SU’s grievance on October 23rd 2019, in his formal grievance, he referred to incidents that occurred after that date, indicating that senior management in the HR department agreed to his request for a formal investigation without knowing precisely what his grievance was about.

In mid-September 2020, Fórsa was informed that the independent consultant would complete his report within four weeks.  We know now that SU retired in early October.  Even though the Council had commissioned a report, the investigation into SU’s complaints was concluded without issuing any findings, or a final report, because agreement was reached with SU regarding his retirement from the Council.  By not producing a final report and by failing to not uphold SU’s allegations, the Council has failed in its duty of care to SEO.  Instead, SEO was assigned to a different operational area, even though, apart from the complaints lodged by SU, he had no issues with his working environment.

The Council declined to investigate the grievance submitted by SEO on January 15th 2021, although an investigation was conducted into a grievance lodged by a colleague on February 17th 2021.  It is the union’s case that, compared to this employee, SEO has been treated unfairly.

Included in the union’s appendices to SEO’s submission is a note of a meeting with the director of services, corporate affairs and governance and the consultant who investigated the other employee’s complaint.  The union claims that this note shows that the director of services “formed the view that (SEO) had engaged in some form of adverse treatment of (SU)…”  It is the union’s case that management pre-determined the outcome of the investigation into SU’s complaint by assigning SEO to a different operational area, claiming that this was because of a concern for health and safety.  No risk assessment was carried out and no expert advice was sought to determine if there was a health and safety risk.  The move to a different operational area caused huge reputational damage to SEO.  He was removed from a senior acting position, even though he was on the national panel for appointment to the senior role.  It appears that SU refused to transfer out of his position.  For this reason, it appears that SU was treated differently to SEO.

When SU retired, and the investigation into his complaint was closed without any findings, SEO was prevented from returning to his former role.

Between March 12th 2020 and January 7th 2022, SEO met with the CEO on six occasions and had a number of phone calls with her in relation to this matter.  At all times, she declined to acknowledge that the process of investigating SU’s complaints was flawed and she refused to appoint an independent investigator to examine SEO’s grievance.

Summary

It is the position of Fórsa that, in respect of SU’s grievance, there was no proper assessment and no examination of the complaints before the appointment of an independent investigator.  The union believes that the preparation of the terms of reference for the investigation of SU’s grievances were deliberately prejudicial.  In line with the Code of Practice for Grievance and Disciplinary Procedures in Statutory Instrument 146/2000, Fórsa believes that SEO is entitled to have been issued with a final report from the investigation into SU’s complaints.  Alternatively, the union’s case is that the allegations should be withdrawn.

At the hearing of this matter on July 26th 2022, Ms Cahalan pointed out that, on April 6th 2021, SEO was moved from his role as an acting SEO, when his “acting” role was filled on a permanent basis.  SEO had been third on the panel for a permanent appointment.  In October that year, he missed out on a permanent position when the person who was second on the panel decided not to take the job.  He then moved to a different local authority.  It is the union’s position that he was removed from his “acting” role because of SU’s complaints.

Fórsa’s position is that SEO’s grievance must be investigated by an independent person.  In addition, in my consideration of this dispute, I have been asked to award compensation for the breach of fair procedures.  In this regard, Ms Cahalan referred to the decision of the Labour Court in the Health Services Executive and Mr Noel Jennings[1].  Mr Jennings was awarded compensation of €20,000 because of the effect of being relocated so that he did not have to work with a colleague about whom he made a complaint.  Ms Cahalan also referred to the decision of my colleague, Emer O’Shea in the case of A Worker and A Health Service Provider[2], where Ms O’Shea recommended that a review be carried out into a finding under the employer’s Dignity at Work policy.  The initial complaint was concluded without the employee’s input, because she was ill and missed the deadline for responding to the draft findings.

Preliminary Technical Point

At the opening of their submission, the representatives for the Council argued that the matter under investigation is not a “trade dispute” within the spirit of the Industrial Relations Act 1969, because it is difficult to see what kind of credible recommendation I, as the adjudicator, could make where the employee is no longer employed by the Council and where the person who made the complaint about him has retired, having withdrawn his request for his complaints to be investigated.  The management side referred to the Labour Court decision in Dell Direct and the Communications Workers Union[3], where the Court held that, in order for there to be a trade dispute, “there must be consideration whether the trade dispute still exists.”  The management side argued that, despite SEO’s perception of having a historical trade dispute, there is no existing trade dispute requiring a recommendation under the Industrial Relations Act because the protagonists are no longer employees and I, as the adjudicator, have been “placed in the impossible position of issuing a credible ‘recommendation.’”  I will address this point under the “Conclusions” heading below.

Response to SEO’s Grievance of January 15th 2021

The management submission sets out a detailed response to the grievance submitted to the Council by SEO on January 15th 2021.  It is not my role to investigate this grievance, but to recommend how the dispute between SEO and his former employer might be resolved.  However, in the interest of completeness, I will summarise the Council’s response.

HR1 submits that he advised SEO how SU’s grievance could be resolved informally.  He claims that SEO “had the status and authority” to resolve SU’s grievances but that he failed to take the opportunity to do so.  Later in his submission, HR1 said that SEO “was not interested in resolving these matters informally.” 

SU did not want to engage in mediation.  He believed that SEO had declined the opportunity to deal with his complaints informally and he did not therefore consider that mediation would be of use.  He did not want an internal investigation to be conducted by Council managers because he believed that SEO and his colleagues were acting “in concert against him” and he had no confidence that the outcome would be fair, where managers would be investigating managers.  For this reason, HR1 was satisfied that SU’s complaints were serious enough to warrant an internal investigation.  He submitted that the Council adhered to the grievance procedure, referring specifically to clauses 9.8, 12.3 and 13.2.

SEO claims that SU’s grievance was not recorded in writing before the HR Department acceded to his request to appoint an independent investigator.  HR1 said that the “voluminous series of complaints supported by email chains of correspondence” would have to be presented in an itemised and coherent way to allow for a proper investigation.  The external investigator commenced the investigation by reading the volumes of documents submitted by SU and itemising the complaints in a coherent way into 24 grievances.  HR1 argued that this was of benefit to SEO and his colleagues as it provided a clear picture of the complaints.  HR1 referred to clause 12.2 of the Grievance Procedure which requires that a grievance is recorded in writing by or on behalf of a complainant.

In response to SEO’s sense of amazement that what he considered to be relatively minor issues could have warranted a formal investigation, HR1 said that it was a matter for the investigator to decide if the issues were minor or serious.  He said that the issues were serious enough for SU to be out of work on certified sick leave.

SEO was concerned that the terms of reference for the investigation into SU’s complaints were “open-ended” and that they could be extended to cover any matter.  It is the Council’s position that the terms of reference were adequate to allow a full and fair investigation to be carried out.

A critical element of SEO’s grievance is that, with SU no longer in the employment of the Council, the investigation into his grievance is closed.  HR1 said that SU was not prepared to withdraw his allegations and the Council could not withdraw his allegations for him.  On December 1st 2020, SEO was informed that there had been no findings in response to SU’s complaints.  The Council has no view regarding the allegations.  HR1 said that the Council has been legally advised that “this is as far as it can go” to address SEO’s complaints.

SEO argued that he was transferred out of his geographical area to satisfy SU and that he should have returned to his original area when the investigation was closed.  HR1 replied that SEO was not transferred, but that he remained in the same role in a different geographical area.  He said that, when SU retired, the Operations Department was working very effectively and a decision was made not to cause disruption with further staff movements.

Summary

The Council’s position is that SEO is not a victim of an injustice, and he has been informed in writing that the Council has formed no view on the allegations that were made against him.  The matter has ended and there is no record of proceedings on SEO’s personnel file.

Regarding SEO’s dissatisfaction at the way in which SU’s grievances were investigated, HR1 said that the CEO reviewed the file and concluded that the approach taken by the HR Department ensured that matters were investigated in a balanced way and in the interest of fairness to all the parties.

In his capacity as a senior manager in the Council, SEO found himself facing allegations and grievances.  The Council’s position is that this is an “occupational hazard that goes with the role and many senior managers find themselves in this position.”  Concluding the council’s submission, HR1 asked me to uphold the approach outlined in the letter from the CEO of January 29th 2021 as balanced and fair.

In the first instance, I wish to address the Council’s concern that SEO’s grievance is not appropriate or suitable for adjudication under the Industrial Relations Act.  HR1 argued that the issues are not a “trade dispute” within the generally accepted meaning of that term.  He referred to the amended definition of “a worker” which can include a former employee and “a trade dispute” which may include a matter that was not resolved at the time when a former employee leaves their employment.  However, the Council’s position is that the “trade dispute” no longer exists and therefore, I can make no recommendation concerning how it can be resolved.

I note that in 2015, in an amendment to the Industrial Relations Act 1947, the term, “trade dispute” was expanded to mean,

“… any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased[.]”

It is apparent that the inclusion of the word “difference” alongside “dispute” is intended to encompass more than our traditional understanding of an industrial relations dispute.  The Labour Court decision in the Dell case (footnote 3) which was referred to by the Council, pre-dates this amendment and it is apparent that the matters in dispute between the parties in that case were substantially resolved by the time they came before the Court.  I am satisfied that the grievance submitted by SEO is “a difference” between him and his former employer which is of considerable importance to him and which has impacted on him and has contributed to some extent, to the fact that he no longer works for the Council.  I am satisfied that it is a grievance, or a difference between him and his former employer, and that it is suitable for adjudication.

I have considered the submissions of both sides and, it is apparent that there are three aspects to SEO’s grievance:

1.              His first complaint is about the way in which the Council conducted its investigation into SU’s grievance and his concern that they did not make reasonable efforts to resolve his complaints informally or by any means other than an investigation by an external consultant.

2.              He claims that he was transferred to a different geographical area to satisfy SU.  He argues that, in the context of an investigation into a complaint of bullying, his transfer to a different geographical region and his subsequent removal from his position as acting SEO back to a grade 7 role as an administrative officer caused damage to his reputation.

3.              He claims that the Council’s failure to conclude its investigation into SU’s complaints leaves the allegations remaining against him in perpetuity.

The Investigation into SU’s Complaints

I accept that, in most circumstances, it is preferable to attempt to resolve grievances informally.  In certain instances however, for a variety of reasons, one or more of the parties to a dispute may not be capable of participating or may be unwilling to participate in an informal process.  SU was clear that he did not want to engage in mediation or facilitation, or an investigation by an internal manager.  I find no fault in the Council’s decision to move, at an early stage, to engage an external consultant to examine SU’s grievances.  It is my view that this provided him with reassurance that his complaints were taken seriously and ensured that he had a neutral party to listen to his concerns.

I note that, in the Council’s grievance procedure, the “primary approach” to dealing with grievances is to deal with them in an informal manner.  It must be acknowledged that an informal approach will not always be appropriate and the HR Department has discretion not to attempt an informal solution.  It is not necessary to wait until an informal approach fails before moving to a more formal intervention.  I find no fault with the Council’s decision to engage an external consultant soon after SU submitted his complaints.  I also have no issue with SEO and his colleagues not being consulted about the drafting of the terms of reference for the investigation and it is my view that it was adequate that they were provided with a copy of the terms of reference.

SEO suggests that the external consultant was instrumental in assisting SU to compile his complaints.  However, before the external investigator was appointed, on October 1st 2019, in his email to HR1, SU was clear in his view that he was being bullied and harassed.  In the second paragraph of his email, he stated:

“I am requesting an independent enquiry into the treatment I have been receiving from Senior Management within the Operations Department.  This on-going harassment, inappropriate behaviour, exclusion, undermining and demeaning of my position contravenes the values that (the Council) espouse to and should not be allowed to continue.”

SU attached “some of the incidents to back up my claim” but he said that there were many more.  We know that the emails and other documents that SU gave HR1 ran to 130 pages, and these comprised the evidence that, in SU’s opinion, showed that he was being harassed, excluded and undermined.  With the assistance of the external consultant on November 22nd and December 13th 2019, he arrived at 24 individual complaints to be investigated.  It is my view that there was merit in the external consultant working with SU to put a structure on his grievances.

In March 2020, with the investigation still ongoing, SU submitted 12 new allegations.  In September 2020, while he was on sick leave, he submitted further complaints and he also made complaints about a fourth manager.  While I accept that this is frustrating and certainly creates complications for the investigation, unfortunately, it isn’t that unusual.  It is my view that nothing would have been achieved by instructing SU not to submit any further complaints, or by telling him that his new complaints would not be investigated. 

To conclude this point, I am satisfied that no unfairness arose to SEO from the way in which SU’s complaints were investigated, by the decision not to attempt an informal resolution or in the support provided by the external consultant to SU to put structure on his grievances.

SEO’s Transfer to a Different Geographical Area

At the end of June 2020, SEO, the administrative officer who reported to him and the director of services were transferred out of their geographical area to different regions.  The Council’s submissions states that this was “because of continuing problematic working relationships and for health and safety reasons.”  SEO had been in an acting position at grade 8 and, in April 2021, the Council decided to fill that post on a permanent basis, with the effect that he reverted to a role as an administrative officer, at grade 7.  It seems that SU resisted a transfer from his geographical area.  He went absent due to illness in July 2020.    

I find it difficult to understand the Council’s rationale for moving SEO (and the other two managers).  Around the time they were transferred, discussions were taking place with SIPTU, of which SU was a member, with a view to moving district supervisors to report to area engineers, rather than administrative officers.  The effect of this would have been that SU would no longer report directly to SEO’s team.  SEO’s view is that, as SU’s reporting relationship was changing, he wanted the people he complained about to be moved also.  I understand that, at a meeting with SU and his SIPTU shop steward in May 2020, HR1 pointed out that the change in the reporting line of district supervisors was separate to his grievance; however, SEO’s view is that the two were connected, at least in the mind of SU.

It is my view that, transferring SEO, the director of services and the administrative officer out of their positions in the operations unit made no sense from the perspective of SU’s welfare, because he was about to report to an area engineer and this would have meant that he was “detached” from SEO and from the administrative officer who had been his line manager.  SEO never raised a concern about his health and safety, and, as far as I am aware, no such concerns were raised by his colleagues.  I must assume that the rationale for the transfers related to concerns about SU’s welfare and that the motive was to provide him with reassurance that action was being taken to protect him from exposure to what he, and perhaps the HR Department, considered to be a risk to his well-being.

The problem with this is that it created a sense that someone in authority decided that the “protagonists” presented a risk to SU and that action had to be taken to keep him safe.  This may have been perceived by observers as an outcome from the investigation, even though it has not been concluded.  I accept that, for a HR team dealing with a complaint of bullying, it is difficult and complicated to navigate the investigation process and to protect all the parties from psychological and reputational risk.  There is no clear roadmap about how to manage this issue and each case must be considered based on its own risks and challenges.  It is my view that, having submitted a formal complaint, and, with the Council agreeing to the appointment of an external person to investigate his complaints, this was adequate to demonstrate to SU that his concerns were taken seriously.  The risk of reputational damage to SEO and his colleagues by being transferred could not be managed or controlled.  As an outsider, I don’t know what the reputational impact was on SEO when he was moved out of his geographical areas; however, it is my view that it was reasonable for him to be concerned.

I note the precedent submitted by Fórsa, of HSE v Jennings (footnote 1).  Unlike SEO, Mr Jennings was a relatively junior employee in the hospital where he worked and he suffered from significant work-related stress when he made a complaint about a more senior employee.  I am not satisfied that the outcome from that case should have a bearing on the recommendation I will make here.      

The Investigation was Closed without being Concluded

I have considered the Council’s position that an investigation into SU’s grievances is not necessary because, when he retired, he withdrew his request for an investigation.  One of the documents in the union’s submission is a copy of an email from SU, which he sent to the CEO three months after he retired, on January 8th 2021.  He copied this email to HR1 and to the four managers against whom he made complaints.  In his email, he claimed that one of the four “continues to make statements to tarnish my reputation and good name.”  He said, “…for the record, let me state quite clearly that I have not withdrawn my complaints against these four individuals and have no intention of doing so.”  He told the CEO that he was prepared to continue to participate in an investigation so that others are not subjected to the “clandestine” behaviour that he claims he was the victim of.

It is apparent therefore, that SU is willing to participate in an investigation; so, this barrier to concluding the investigation has been removed.  It is my view that the Council should bring the investigation to a conclusion.  I make this recommendation for the following reasons: 

In the first instance, SU’s complaints are serious.  If there is substance to his complaints, the failure to bring the investigation to a conclusion and to issue findings means that nothing has been done to ensure that the conduct that he complained about is addressed.  While SU has retired, and is no longer at risk in the workplace, the failure to conclude the investigation means that other employees may be exposed to the adverse treatment that he complained about.

Although the circumstances are not entirely comparable, the background to the High Court judicial review case of Deirdre Morgan v The Labour Court and others[4] is a useful precedent.  Ms Morgan was a teacher in a school in Kildare and she made a complaint of sexual harassment against one of her students.  The school’s board of management appointed a barrister to investigate her allegations; however, during the investigation, Ms Morgan withdrew her complaint.  The investigation went ahead, and a finding was reached that the allegation of sexual harassment was without foundation.  While this was an important outcome for Ms Morgan, it was a critical outcome for the student that she complained about, and for her employer.

The failure to bring the investigation to a conclusion means that SEO (and others) remains accused of bullying, although there may be no substance to SU’s complaints.  This is an untenable position for the Council to adopt, because it permits any employee to make a complaint about a manager (or another employee) and then to withdraw from the investigation, leaving the allegations untested.  I disagree with HR1’s assertion that this is an “occupational hazard.”  The failure to pursue an investigation to a proper conclusion risks the possibility that allegations themselves are used as a tactic of intimidation and bullying.

Three months after his retirement, SU indicated that he was willing to participate in an investigation into his complaints.  A complainant who resiles from an investigation may do so under pressure or, they may be affected by anxiety or stress and may feel unable to participate.  In the interest of fairness to everyone on both sides of an allegation of bullying, it is essential that an investigation is concluded.  With the parties on both sides willing to co-operate, it is my view that the Council should re-start this investigation at the point where it was halted in October 2020 and bring the matter to a conclusion.

I am satisfied that it was reasonable for the Council to initiate a formal investigation into SU’s allegations of bullying and I find that there are no procedural failings with the investigation itself.  In the interest of fairness to all the parties, I recommend that the investigation is concluded.

I accept that it was reasonable for SEO to be concerned about his reputation when he was transferred to a different geographical region in June 2020.  I find however, that, as he moved to a more senior position in another local authority, no lasting damage has been done to his reputation and I recommend that no award of compensation is made. 

Grievance regarding an investigation into an allegation of bullying.