Complainant

Respondent

Anonymised Parties

A Health Care worker

A Health Service Provider

Representatives

JRK Business Support & Employee Advocacy Services

In house advocate.

Act

Dispute Reference No.

Date of Receipt

Complaint seeking redress under Section 13 of the Industrial Relations Acts, 1969.

CA-00045141-002

10/07/21

The complainant commenced employment with the respondent on February 1st, 2002, and was continuously employed for more than nineteen years prior to her resignation on May 25th, 2021.

The complainant had been employed in a senior role but had two significant periods of illness absence, the first for a period of three months, from November 2015 to the start of February 2016 due to “acute stress’ and the second from June 5th, 2020, to the end of her employment.

She had difficulty remaining at work the day before she went sick in June 2020 because of her manager’s attitude, and she sought medical advice. She says that the period of three month’s absence in 2015 can also be attributed to the sane behaviour and the same manager.

The chronology of events (which is not in dispute between the parties) is as follows.

On July 31st, 2020, the complainant indicated her inability to return to work due to the conduct of a manager and wrote to her HR manager to this effect. He replied saying he would assess the complaint.

On August 13th the occupational health department concluded that she was not fit to return to work but could engage with management for the purposes of her complaint. The occupational health physician recommended that the HR Manager discuss the complainant’s concerns with her directly.

On August 31st this meeting took place and the complainant met HR which requested details of her complaint against her manager. There was also reference to attempting to deal with the matter amicably. In September there was a follow-up meeting, and the complainant submitted a document on September 14th which was deemed by management to contain insufficient detail for the purpose of a more formal process.

In October there was a further review with occupational health, and she was again deemed unfit to return to work.

On November 26th her representative made a submission and the respondent indicated that the nature of the complaint did not allow it to be dealt with under the Bullying criteria, but it could be pursued as a grievance.

Attention was drawn to the lack of specifics.

In January there was a further review with occupational health in the course of which she was deemed unfit to return to work. The following month her representative escalated the matter to the HR Director of the respondent who declined to engage with him on the basis that he was not an accredited representative as defined in its policies. Then on May 24th the complainant resigned.

At the hearing she outlined the background to the initial July 31st complaint and the efforts of one of her managers to dissuade her from seeking a formal investigation. That manager said he would speak with the respondent in the complaint.

She said that she sought a copy of the screening report on three occasions, and it was the letter received from the respondent on May 11th 2021cthat she saw as inviting her to resign. It confirmed to her that the respondent did not care about her and was only concerned about protecting its managers.

This was reinforced by the failure of the respondent to write confirming acceptance of her resignation. She confirmed at the hearing that she had worked with the manager against whom she had made the complaint for twenty years but said that things between them deteriorated around 2015 and 2016.

In response to a question as to why she had not invoked the grievance machinery she said she did not know why and that she had declined mediation as she did not want to be in the same room as the person against whom she had made the complaint.

She alleges that her decision resulted directly from the treatment she endured in the workplace over a long period and alleges that the failure of the employer to address her situation left her with no choice but to resign.

What is glaringly missing is any attempt to establish the facts and deal with them accordingly.

The respondent’s report makes no attempt to support the position that the complaint did not fit the definition of bullying. There is no evidence of any investigation as required under the Dignity at Work Policy; it was not followed. Moreover, the behaviours complained of, and stated to have been endured by a number of colleagues, past and present, were not pursued in the manner prescribed in the policy.

Based on what was produced after six months and despite the exchanges referred to, one could be forgiven if concluding that the overriding imperative was to contain, and suppress the complaints, rather than effectively examine them in order to determine what issue(s) needed to be dealt with, if any.

The fact is that the recorded response of the alleged perpetrator of inappropriate/bullying behaviour suggests at least partial acceptance that behaviours complained of did or may have occurred.

The complainant had to seeking support through the EAP process and counselling.

Based on the chronological listing of exchanges, there is little evidence to suggest that the actual impact on her wellbeing was considered as an indicator of a basis for her complaint.

The fact is that her six-page elaboration of September 14th, was not properly considered or addressed as is that a colleague found himself having to take sick leave since, she commenced her absence.

Despite the warning indicators, the response to her complaint was wholly inadequate in terms of the need to secure and maintain a workplace that provides employees with “…a safe working environment which is free from all types of bullying..” and harassment, as properly demanded by policy.

Despite a recommendation by an Occupational Health doctor that a risk assessment be undertaken, there is no clear evidence that this was undertaken/completed.

One important aspect of the inadequacy of management’s response is the fact that the complainant’s plea to have her salary maintained while matters were addressed was completely rejected, without any evidence that her plea was properly or fully considered.

The respondent’s Critical Illness Protocol prescribes the duty of management in informing an employee of a management decision under this protocol wherein at Section 2.2 it states that a decision should be communicated in writing “…summarising the matters that he or she has considered. These reasons should demonstrate that the manager has considered all relevant considerations and has not been influenced by irrelevant considerations.” The decision issued to the complainant on November 11th, 2020, cannot be said to have met this requirement.

In summary, the complainant says she was bullied by her manager with whom she had worked for over 20 years and says that the behaviours complained of only developed recently.

She submitted a complaint to the HR Manager on July 31st, 2020, followed by a more detailed complaint on September 14th, 2020.The HR Managere xamined the complaint in detail and carried out preliminary screening under the Dignity at Work Policy.

It is accepted that this took longer than it should, but the Covid pandemic played a part.

The HR Manager's report issued on November 30th, 2020, and concluded that the complaints did not fall under the definition of bullying and that the matter should be addressed under the Grievance Procedure. He also indicated that the complaints were of a general nature and lacked detail.

The complainant did not accept his conclusion, sought professional advice, and made an approach to the National Director of HR.

It is important to note that the complainant failed to take up the matter pursuant to the respondent 's Grievance Procedure as she had been advised by her manager and persisted in seeking an external investigation into the matters of complaint.

When it became obvious that she was not going to convince the respondent to accede to her wishes, he resigned her post. She alone made that decision, and the employer is of the view that the decision was an unreasonable one.

The complainant was under review by Occupational Health who deemed her fit to engage with management where she could have taken her issues of complaint under the Grievance Procedure to the Operations Manager.

In respect of the separate constructive dismissal claim it is submitted that the Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination by a party of any contract of employment.

It is, after all, a breach of a legally binding contract. Where an employer wishes to terminate the employment, there must be cause, this must be followed by a fair process and finally, the sanction of dismissal must be within the range of reasonable sanctions in relation to the conduct-giving rise to the disciplinary proceedings. On the other hand, where an employee wishes to terminate the employment, it is relatively easy for them to do so by simply giving notice of their intention to do so and then resigning and in most, if not all cases, an action for breach of contract is unlikely to arise.

Similar principles must be applied to any complaint under the Industrial Relations Act.

It is the employer's position that the complainant should have invoked the Grievance Procedure as advised by the HR Manager and not persist with her demand for a full investigation into the complaints as submitted.

This matter was also the subject of a separate complaint under the Unfair Dismissals Act of constructive dismissal. 

As noted above the facts are not in dispute.

The complainant is very critical of how the respondent processed her case and at least in respect of one element of this, the initial delay, the respondent agrees that the delay was unacceptable and has apologised.

This complaint under the Industrial Relations Act will have regard to the general equity of how the respondent handled the case, although in one important, indeed critical respect, there will be a crossover to the demanding level of proofs required in a case of constructive unfair dismissal, insofar as it concerns the complainant’s use of the internal workplace procedures.

Looking at the commencement of the process, the complainant must surely have known that in respect of the original complaint against her manager, she would have to provide a good degree of detail in order for a complaint of a relatively serious nature such this.

This would have initially enabled her employer to review the matter, and should it proceed, provide any respondent with sufficient information to enable them to exercise the right to answer it as a matter of fair procedure.

She first made a complaint on July 31st, 2020, and was told it would be assessed.

In fact, there was nothing further until a meeting on August 31st at which further details of the complaint were requested. She submitted a document on September 11th which was again deemed to contain insufficient detail.

Eventually on November 26th her representative made a detailed complaint, some four months after she initially raised the matter.

Some days later, on October 30th the respondent concluded that the complaint did not fall within the bullying criteria (again citing the lack of specific detail) and recommended to her that she should pursue this as a grievance.

A further month passed before she formally rejected this assessment, for various reasons. These included that the respondent’s Dignity at Work policy had not been properly applied.

Quite what the complainant saw as her strategy at this stage is hard to fathom. She had a number of options.

One was to process the original complaint as a grievance as recommended to her by the HR Manager. Another might have been to process the conclusions of the HR Manager on her complaint with which she disagreed so vehemently as a grievance.

However, instead she embarked on what must be regarded as a rather futile attempt to engage the National Director of HR on her issue, which does not require the benefit of hindsight to see as unlikely to bear fruit, and not just on the grounds of the status of her representative. The National Director was unlikely to become involved in a matter which had not been processed in accordance with the respondent’s own procedures.

By the time the National Director was approached in February 2021 seven months had passed since the matter was first raised, and while the respondent apologises for its contribution to the initial delay, the complainant’s own contribution to the delay is now a significant factor, indeed much greater than any delay caused by the respondent.

It appears that she had no clear sense of how she wanted to take the matter forward, insisting somewhat obdurately that it would only be done on her own terms.

A further consideration, which may be relevant to understanding the pressure under which the complainant found herself, was that somewhat parallel to this narrative she had applied for but was unsuccessful in getting an extension to her sick pay.

While this featured in the correspondence, I find that it is not relevant to the current complaint.

The screening of complaints is normal and necessary in order to determine how they are to be processed. I have reviewed in detail the HR Manager’s conclusions in his letter of November 30th to which the complainant took such strong exception.

In fact, in my opinion, it is well-written and a carefully measured and reasoned document, ironically highlighting the complainant’s consistent rejection of any efforts to resolve the matter as well as pointing out the inadequacy of the detail provided.

Her initial complaint stated merely that the manager in question had been guilty of ‘repeated inappropriate and bullying behaviour’ without taking the trouble to say what this alleged conduct actually was.

There is a tendency to believe that simply describing something as ‘inappropriate’ will relieve the user of the necessity to explain what makes it so. The complainant must have known that a simple expression of belief on her part that the conduct complained of was ‘a classic case of bullying’ as she described it, would not be sufficient and would require some more independent verification than her simply expressed belief that it was.

Likewise, a simple refusal to attend a meeting with a person in a conflict situation may have adverse consequences. The refusal of a person to attend a meeting with a colleague with whom she had worked for practically twenty years on the basis that she did not wish to sit in the same room as him is not  a convincing argument.

I do not see how the HR Manager, or any other person could, on the facts before him, have reached any conclusion other than the one he did, and the complainant’s reaction appears to reflect a total lack of understanding of the requirements of the procedure which he (and she) was obliged to follow. 

Incidentally, the HR Manager’s earlier letter to the complainant of July 13th might also be described as helpful and even sympathetic, without obviously pre-judging the complainant’s allegations. But it adds to the difficulty in accepting her conclusion that she would not have her case handled fairly by the respondent.

Rather than consider his response and recommendation on their merits she then proceeded to waste a further period of months on a wild goose chase.

In particular, she failed to see that the offer to have the matter processed as a general grievance does not necessarily diminish the level of gravity of a complaint or provide a less effective outcome; it simply places it outside the specific context of the dignity at work policy.

Having predictably failed to make any progress she then resigned, which while it is a matter of great sadness given her long career the narrative preceding her failure to exhaust the respondent procedures undermines her right to a remedy under this legislation.

Her determined rejection of the processes available to her, and of which it is necessary to make full use to meet the criteria for a constructive unfair dismissal, also undermine her case for a remedy under this Act. Her statement in sworn evidence that she did not know why she had not done so is also very damaging to her case.

In particular her letter of resignation displayed no insight into her own contribution to the problems of which she complained, and on which she now relies to ground her case.

For example. she stated that she was ‘certain’ that her complaints ‘will not be investigated or addressed’ despite the fact that she had been offered the option six months earlier of pursuing them as a grievance which she decided not to exercise.

Fatally for her separate case of constructive unfair dismissal this refusal to exhaust her employer’s internal procedures proved decisive. In the case of that Act that derives from the settled legal authority of both the superior courts and the well-established jurisprudence of this and previous employment tribunals and the Labour Court

But, it is no less decisive in respect of cases under this Act, for somewhat different reasons, specifically that the WRC and the Labour Court will not provide an audience for matters when the workplace procedures have not been fully exhausted.

To do so would completely undermine the very workplace relations which appears on the name of the WRC.

The Labour Court has made it clear (in INT 1014) that

‘The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.’

Accordingly, the complainant cannot get a remedy under this legislation for all these reasons.

For the reasons set out above I do not uphold complaint CA-00045141-002 and it is dismissed.

Grievance policy, Use of workplace procedures.