Complainant

Respondent

Anonymised Parties

A Worker

A Development Company

Representatives

Vernon Hegarty SIPTU

Ciaran Tansey Damien Tansey Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts 1969

CA 00046443

29.09.2021

In her complaint form the claimant submitted as follows :

I have lodged a grievance against a board member of bullying and harassment in March 2020 and subsequent grievance in March 2021. My employer has failed to engage on the matter and has left me no option but to refer the matter to the WRC. The respondent asserted that they had complied in full with their own bullying and harassment procedures, that the impact of Covid had to be taken into account in the context of allegations of failing to comply with procedures as well as the fact that the members of the Board of Management were all volunteers. It was submitted that the respondent had acted reasonably and that there was no case to answer.

The union presented the following submission on behalf of the claimant:

 The case before you today concerns the complaint of Ms. A (‘the Complainant’). that she was denied effective access to workplace protections against bullying and/or abusive behaviour in the workplace, by her employer, CTR (‘the Respondent’). The complaint is referred under the Industrial Relations Acts 1946 - 1990.

 Background

 1. The Respondent was established as a Community Development company in  Co. Donegal in 2018. The Complainant commenced employment as Development Officer with the Respondent in October 2018, under contract subsequently signed-off and dated 30th of September 2019.

 2. The Complainant experienced difficulties with one particular member of the Board of Management and Director of the Company, Ms. B and by the 2nd of March 2020 felt compelled to make a formal complaint in writing to the Respondent.

3. As the Respondent failed to act on the initial complaint and with the offending behaviours continuing, the Complainant made a second formal complaint in writing on the 22nd of March 2021, again outlining infringement on her right to Dignity in the workplace.

 4. By June of 2021 HR Company X had been engaged by the Respondent to investigate and to hear the grievances. They were doing so under the Dignity at Work Policy. The full set of grievances are outlined in HR’ Company’s  letter informing the parties of the Terms of Reference of their investigation . An outline of the three main aspects of the grievances are distilled in a letter to the Respondent dated 14/09/2021.

5. On the 14th of October the Respondent wrote to the Complainant advising that they had decided not to apply her agreed new pay terms and that the matters of her other grievances were to be ‘discussed’  further. No further response was received from the Respondent and HR  Company  X subsequently could not continue with the process as the Respondent would not engage with them. SIPTU sought the Respondent’s re-engagement with the process by email dated 11 January 2022 but received no response.

 Union Case

 6. We submit that the Respondent failed to adhere to or apply the provisions of the Dignity at Work Policy which they had formally adopted as their own in 2019. (Appendix 2, pp. 6 – 30)

 7. We submit that the failure to apply any policy or procedure at all to address the substantial complaints submitted by the Complainant in March 2020 and again in March 2021 also contravenes the principles set out in SI 674 of 2020, specifically where the Code references the Respondent’s, “…duties under section 8(2)(b) of the 2005 Act as regards, ‘managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health and welfare at work of his or her employees at risk.’”

 8. It is clear that allegations of offending conduct of a most serious nature were in question and that the absolute failure by the Respondent to afford the Complainant any recourse to the protections of the policy represents a fundamental contractual breach on their part, exposing the Complainant, as it did, to potential continuing abuse without any available workplace protection or remedy. The impact of this failure had a considerable impact on the Complainant’s health.

 9. We further submit that the decision to withhold a pay increase which had been sanctioned by Udaras na Gaeltachta formed part of a pattern of vindictive treatment toward the Complainant by the Respondent and is rightly to be considered within that context in the current case.

 Conclusion

 10. We submit that the Respondent’s egregious conduct in denying the Complainant any effective access to provisions designed and agreed to provide most basic protections against abuse or any other inappropriate conduct in the workplace, represents a most fundamental denial; the employee is left in a wholly exposed position without either the means to defend herself or to have the offending conduct stopped.

 11. We therefore respectfully request that findings that be made that;

 a. the Respondent failed to apply the terms of the procedure

 b. that the Respondent affirm that they will adhere to the Policy in full in future

c. that the Respondent pay such compensatory award for their failure which the Adjudicator deems appropriate in all the facts and circumstances.

 12. We respectfully request that you hold in favour of our member’s complaint.

The union contended that the respondent had been put on notice of their responsibilities to the complainant and were furnished with 2 formal complaints on the 2nd March 2020 and the 22nd.March 2021. It was submitted that the complaints had been met with a wall of silence. The claimant was left with no work to do and had no option but to source work elsewhere. It was submitted that the claimant’s contract of employment had never been terminated by either party.

The union asserted that Ms.K’s presentation was not dealing with the claimant’s grievance – it was a tool to provide guidance for the Board and staff on working together and enhancing communications. It was submitted that this was not a mediation process. It was submitted that mediation would have resulted in the construction of an agreement and would not have resulted in a power point presentation. It was submitted that the presentation was intended as guidance on how the parties should conduct themselves- it was clear from the document that the presentation was not a mediation. The process was described by the union as an advisory process that did not address or resolve the claimant’s grievance. It was submitted that the work undertaken by HR company X did not go anywhere and it was suggested that the respondent was having difficulty in getting the Board members to engage. The union asserted that they were unaware of any conclusions from the investigation as the process never got off the ground. It was submitted that the union wrote to the respondent appealing for them to reengage in the HR company X process – to no avail. The respondent’s policy was not implemented and it was submitted that with great reluctance the matter was referred to the WRC.

The claimant asserted that she never saw a complaint about her from Ms.B  and the first she learned of same  was at the hearing where it was referenced on a number of occasions by the respondent’s representative. She stated that she had never received a warning or reprimand. She went on to say that on the advice of her GP she was obliged to go off on sick leave in 2019.The complainant said she found herself in the position of having to defend herself and her work ethics.  She asserted she was a very good development officer and had done everything she was asked to do.

The respondent’s representative submitted as follows:

1. This complaint concerns a claim relating the Industrial Relations Acts 1946-1990. See Complaint Form. The Complaint is brought by Ms. A (hereinafter ‘the Complainant’) against her former employer,  CTR (hereinafter ‘the Respondent’).

 2. Our defence and hence our submission are based on the submission via the complaint form filed by the Complainant with the WRC on the 29th September 2021. We submit that the jurisdiction of this adjudication hearing does not extend past the said date, and we will be asking the adjudicator to disregard the Complainant’s submissions that post-date the 29th September 2021.

Background

  3. The respondent is a community development company incorporated in 2018 for the purposes of enhancing life in West Donegal. They are an Irish-speaking company that focuses on community projects within the Central Gaeltacht. The management Board   operate on a voluntary basis, meaning that they are unpaid for their work.

 4. It should be noted at the outset that Údarás na Gaeltachta worked in conjunction with the Respondent in the furtherance of their aims in their region. Údarás na Gaeltachta provided funding and support to the Respondent in this context.

 5. The Respondent had one employee, the Complainant. The Complainant commenced her employment as Development Manager with the Respondent in October 2018. Her main role, as per her contract of employment, was to source funding to enable the Respondent to pursue community projects in the area. The Complainant’s contract of employment was a one-year contract, capable of being renewed for subsequent single years.

 6. The Respondent was a newly established company, formed by representatives of local community groups in this area of Co Donegal. The Respondent generally held monthly board meetings, but as the Respondent was run by volunteers, it sometimes transpired that it was not possible to hold meetings every month, and the Directors then met when they were in a position to do so. The Complainant was expected to attend these meetings to present her work report, although her attendance following the presentation of this report was not strictly necessary.

7. In order for the Respondent’s representatives to be up to date with their responsibilities as employers, they agreed to participate in governance training with a consultancy company  on 3rd March 2019. On the basis of this training, a Dignity at Work Policy and Procedure was agreed upon, adopted and signed by the Complainant and the Respondent on the 2nd December 2019. This policy provided clear and detailed procedures that were to be adhered to when dealing with allegations of bullying in the workplace.

 8. Throughout 2019, interpersonal issues began to occur between the Complainant and Ms B (one of the Directors of the Respondent).

9. The Complainant then made her first written complaint in relation to the alleged behaviour of Ms. B on 2nd March 2020. The Complainant handed a letter of complaint to the Chairman of the Board following a board meeting. The Complainant then met with the Chairman in the presence of her Union Representative in an informal meeting in or around March 2020. They discussed the contents of the Complainant’s written complaint and the Chairman  was warned by the Union Representative that if the situation did not improve, the Respondent would be issued with a formal complaint.

10. As the Complainant is aware, the Respondent is a small community group ran by volunteers. As such, the Respondent welcomed the guidance of Údarás na Gaeltachta in resolving the issues raised in the complaint of the Complainant. In this regard, the Respondent facilitated the involvement of Ms.K  an independent Executive, Life and Career Coach, to mediate between the Complainant and Ms B.

11. In March 2020, Ms K provided mediation to the Complainant and Respondent, a process that had been arranged with the assistance of Údarás na Gaeltachta. Ms K met with both parties to the dispute over several weeks between March to August 2018. Following these individual consultations, Ms K brough both parties together in a joint session on 12th August 2020 and presented her findings and recommendations to the parties. These recommendations included various advices as to how the Respondent company should be operated in order to avoid any further conflict between the Complainant and the Respondent. Both parties agreed on this occasion to abide by these recommendations.

 12. Throughout the remainder of 2020, the Complainant and the Respondent conducted much of their interactions virtually due to the restrictions brought about by the onset of the Covid19 pandemic. The conflict between the Complainant and Ms. B appeared to have resolved, and the Complainant raised no further issues in this regard to the Respondent during this period.

 13. Unfortunately, relations between the Complainant and Ms.B began to deteriorate once more during 2021. Ms. C made a written complaint about the Complainant’s behaviour to Údarás na Gaeltachta on the 16th March 2021.

14. The Complainant then made a written complaint to the Chairman regarding Ms. B on the 22nd March 2021. It was decided that given the nature of the complaint, and the small size of the Respondent company, it would be prudent to protect the interests of all concerned and to refer the investigation of the matter externally.

15. The Respondent sourced an external third-party agency, HR Consultancy Company X, and engaged them formally to advise in relation to this complaint.  HR Consultancy is an independent Human Resources company based in Co Donegal.

 16. A full and detailed statement was prepared by the Complainant and submitted to Company X  (and their Mr G ) on 9th June 2021. Mr G distilled the statement and presented same along with the terms of reference for the investigation to the Respondent in or around July 2021. Mr G carried out further consultations with the Respondent and with Ms.B. Ms.B  prepared a detailed response to the statement made by the Complainant.

17. Mediation was proposed and Ms.B  agreed to this process. Unfortunately, in a letter dated 14th September 2021 the Complaint refused to consider mediation. Following the refusal by the Complainant to engage in mediation suggested by Company X , the investigation was stalled for some time as the Respondent considered their options.

 18. However, within two weeks of her refusal to engage in a mediation process, the Complainant made her initial complaint to the WRC on 29th September 2021. The initial complaint form consisted of two complaints, one relating to industrial relations with the following complaint relating to Section 6 of the Payment of Wages Act 1991. The latter Complaint was withdrawn by the Complainant on 11th January 2022.

19. On the 12th October 2021, Mr.B the current chairman of the Respondent agreed to an investigation of the Complainant’s complaint by an adjudication officer.

 LEGAL SUBMISSIONS COMPLAINT INDUSTRIAL RELATIONS ACT CA00046443

20. It is the submission of Complainant that the Respondent failed to adhere to the Dignity at Work Policy and failed to apply any policy or procedure to the complaints submitted by the Complainant to the Respondent in March 2020 and in March 2021. This submission by the Complainant is wholly denied by the Respondent.

21. On both the aforementioned occasion of complaints raised by the Complainant, the Respondent initiated or facilitated processes that were intended to resolve the Complainant’s issues in fair and dignified manner with the least amount of conflict and stress to those involved. Each of the complaints and the responding resolution procedure will be considered in further detail below

 22. With the first complaint raised by the Complainant on 2nd March 2020, the Respondent made every effort to address the matters raised by the Respondent as per the Dignity at Work policy, and in particular, arranged for an external mediator, Ms.K, to provide mediation between the Complainant and the Respondent.

 23. The Dignity at Work policy adopted by the Respondent states at section 7.5 that: ‘mediation is the preferred method under the Dignity at Work Policy for the resolution of bullying and harassment which are not capable of being resolved by local management’.

24. To the Respondent’s knowledge and understanding, following the intervention of Ms.K , the Complainant, was satisfied that the issues raised in her complaint had been addressed and resolved. The Complainant had not indicated otherwise at any point, and she did not raise any other complaints with the Respondent in the intervening period between March 2020 and March 2021.

25. In relation to the second complaint made by the Complainant in March 2021, it is submitted that the proper procedures under the Dignity at Work Policy were adhered to, and the Complainant did not allow sufficient time for this procedure to be carried out.

26. According to the aforementioned Dignity at Work Policy, at page 15, it is stated that “If the matter cannot be resolved at local level or through mediation, it may be the subject of a formal investigation”.

 27. In addition, by the time the letter of complaint dated March 2021 was submitted by the Complainant, the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (hereinafter “the Code of Practice 2020”) had been published and the Respondents took note of same in initiating a response to the Complainant’s complaint in March 2021.

The Code of Practice states: ‘In smaller organisations…where internal structures are limited, if the complaint made is against a senior person within the enterprise, it may be necessary to use the expertise of an independent professional body to access mediation or conciliation or some other form of resolution.’

 28. In this regard, it is submitted that the Respondent made every attempt to abide by the terms of the Dignity at Work Policy and the Code of Practice 2020 by engaging HR Company A to launch a formal investigation to hear the 2021 grievance.  The company initiated the investigation in June 2021 and obtained formal statements from both the Complainant and the primary subject of her complaints, Ms.B Mediation was proposed, but the Complainant rejected this suggestion outright.

29. The Complainant did not allow sufficient time for the Respondent to offer an alternative to mediation before submitting a complaint to the WRC on 29th September 2021. As the Complainant is aware, the Board of Directors of the Respondent is made up of voluntary workers who do not meet on a regular basis. In this respect, it is submitted that the Complainant’s submission was premature, particularly in consideration of the fact that Covid restrictions remained in place in this time period.

30. In relation to the submission by the Complainant that the decision to withhold a pay increase was vindictive in nature, it is submitted that this is a contractual issue and does not fall within the remit of the complaints submitted for adjudication today. The Complainant herself requested in the funding submission to Údarás na Gaeltachta that an extra €11,000 be allocated for a pay increase for the Development Officer. Although this Complainant request was granted by Údarás na Gaeltachta, it was not agreed by the Respondent to grant any pay increase and no new contract was ever issued to the Complainant incorporating this pay rise. In any event, we note that this allegation has been specifically withdrawn on the 11th January 2022 via email and we must assume therefrom that the Complainant thereby acknowledges that her contention against the Respondent was unfounded. 

CONCLUSION

31. It is submitted that the Respondent made appropriate efforts to address both the complaints submitted by the Complainant in March 2020 and March 2021 in line with the Dignity at Work Policy and the Code of Practice.

32. A degree of fairness and equity must be applied by the adjudicator but more importantly those principles must be taken on board by the Complainant herself and those that support her. The Respondent was at all times a small community organisation that was run by unpaid volunteers. We have no doubt that the adjudicator will be gripped by considerations of fairness and equity in assessing what can be expected by a small community group of this stature.

33. It is submitted therefore that the Complainant’s complaint under the Industrial Relations Act is lacking in merit and should be rejected.

It was submitted that there was no basis in law for contending that the contract is still in place. It was submitted that the respondent did engage in the process and had recruited Ms.K in the context of the first complaint and had recruited HR Company X  when the second complaint was received.It was contended that the complainant did not raise the second complaint until she became aware of the complaint that had been submitted by Ms.B. It was further submitted that the complainant had rejected the option of trying to resolve the conflict through mediation. It was suggested that the complainant was motivated by being peeved about her suggested pay rise in making the complaint. It was submitted that the complainant would not take instructions from her employer. It was submitted that the first grievance submitted by the complainant was not deemed to be a grievance and the claimant refused to engage in the process initiated by Ms.K. It was submitted that the Chairman had asked the complainant to be available for 1 hour per week to answer to the Board but she had failed to put up a time table to indicate her availability. The respondent said that the Board never knew where the claimant was , whether or not she was on holidays or sick leave. Ms.K had tried to devise strategies to normalise relations and provide for a sharing of information and support for both parties.

It was submitted that the back drop of Covid was a factor – the place was shut down for a considerable period ; it was submitted that nobody knew the whereabouts of the one employee and whether she was on holidays or off sick. It was submitted that after Ms.K’s involvement things went very quiet .It was contended that the claimant countered the complaint from Ms.B with a counterclaim .It was submitted that the issue ultimately was all about the complainant’s pay claim

The matter of the claimant’s employment status, while raised at the hearing , was not a feature of the complaint referred and accordingly is not within my remit to address as part of this investigation.

I have reviewed the submissions made by the parties , the evidence presented at the hearing and the documentation furnished to the WRC.I acknowledge the respondent’s representative ‘s submissions regarding the impact of Covid and the fact that members of the Board were and still operate as unpaid volunteers .However, having regard to the respondent’s own policy as well as S.I. No. 674of 2020 Code of Practise for employers and employees on the prevention and resolution of Bullying at Work , it is clear that the complainant was denied an investigation process into her allegations of a breach of her dignity at work as documented in her complaints of March 2020 and March 2021.I acknowledge the efforts of Ms.K to undertake what appears  to have been an organisational review with a view to improving procedures and communications  within the organisation but I cannot accept that this constituted mediation in circumstances where the complainant was unaware that this was a mediation process and in circumstances where the complainant had sought an investigation. I further acknowledge that the respondent’s policy references mediation as the preferred option for processing complaints of this nature – notwithstanding this , mediation can only function if both parties voluntarily enter into the process .I am satisfied that the claimant had an entitlement to have her complaints  investigated  within a reasonable time frame and I cannot accept that Covid or that fact that the Board of Management were unpaid volunteers exempts them from their responsibilities in this regard. The complainant referenced the decision of Mr.O B in his email to her to advise that “ the committee is not happy to go down the investigation route”.

In all of the circumstances I find that this complaint is well founded. I further find that the respondent failed to observe the provisions of the above-mentioned statutory instrument and their own Dignity at Work procedure in failing to carry out an investigation into the complainant’s allegations in a timely manner. I recommend in full and final settlement of this complaint that the respondent commits to proactively managing complaints of workplace bullying in accordance with their own procedures and SI 674 of 2020, that the parties immediately reengage with a view to reactivating the process initiated by HR company X  and that the respondent pay the claimant a compensatory sum of €3,000 for the prevarication and delays in  the  processing of the claimant’s complaints.

Delays in Bullying & Harassment Investigation