Worker

Employer

Anonymised Parties

Office Manager

Doctor’s Practice

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-00039131-02

11/08/2020

The worker has left the employment claiming that she was bullied and had no option but to leave her employment based on the unreasonable conduct of her employer.

The employer stated that it was the unreasonable behaviour of the worker and her insubordination and refusal to carry out a reasonable instruction that gave rise to an unpleasant incident that caused injury to another colleague.

The worker stated that she was bullied and undermined over several years and that the conduct of her employer was unreasonable. At times she was not paid. It is alleged that the officer environment not only had the pressure of a busy practice but also other commercial pressures concerning debt collection that made her work highly stressful. She felt that she was being targeted and moved out of the practice. The straw that broke the camel’s back was an alleged physical assault. She stated that her grievance was never fairly heard. The practice head who was married to the Doctor who it is alleged assaulted her failed to put in place a fair process so that the serious allegation could be heard.

The Complaint is opportunistic and arises in response to a disciplinary sanction given to the worker when she assaulted a medical practitioner. It is a distortion and a fabrication. There was no assault. The worker attempted to grab a medical file/correspondence from a doctor’s hand. The aggressiveness of this action in turn caused serious upset and compounded an existing injury.

The worker failed to attend at any meeting organised to hear her grievances. She cannot maintain that procedures were not complied with when she failed to progress her grievance and was given every opportunity to do so.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

This complaint was lodged on the 11th of August 2020.

S.I. No 674/2020 concerning the resolution and prevention/resolution of bullying at work came into force on 23rd December 2020 and post-dates this complaint.

However, similar principles applied under S.I. No. 17/2002 relating to a bullying grievance:

Procedures

7.   Informal Procedure

While in no way diminishing the issue or the effects on individuals, an informal approach can often resolve matters. As a general rule therefore, an attempt should be made to address an allegation of bullying as informally as possible by means of an agreed informal procedure. The objective of this approach is to resolve the difficulty with the minimum of conflict and stress for the individuals involved.

(a) Any employee who believes he or she is being bullied should explain clearly to the alleged perpetrator(s) that the behaviour in question is unacceptable. In circumstances where the complainant finds it difficult to approach the alleged perpetrator(s) directly, he or she should seek help and advice, on a strictly confidential basis, from a contact person. A contact person could, for example, be one of the following:

•    a work colleague;

•    a supervisor or line manager;

•    any manager in the workplace;

•    human resource/personnel officer;

•    employee/trade union representative.

In this situation the contact person should listen patiently, be supportive and discuss the various options open to the employee concerned.

(b) Having consulted with the contact person, the complainant may request the assistance of the contact person in raising the issue with the alleged perpetrator(s). In this situation the approach of the contact person should be by way of a confidential, non-confrontational discussion with a view to resolving the issue in an informal low-key manner.

(c) A complainant may decide, for whatever reason, to bypass the informal procedure. Choosing not to use the informal procedure should not reflect negatively on a complainant in the formal procedure.

8.   Formal Procedure

If an informal approach is inappropriate or if after the informal stage, the bullying persists, the following formal procedures should be invoked:-

a.   The complainant should make a formal complaint in writing to his/her immediate supervisor, or if preferred, any member of management. The complaint should be confined to precise details of actual incidents of bullying.

b.   The alleged perpetrator(s) should be notified in writing that an allegation of bullying has been made against them. They should be given a copy of the complainant's statement and advised that they shall be afforded a fair opportunity to respond to the allegation(s).

c.   The complaint should be subject to an initial examination by a designated member of management, who can be considered impartial with a view to determining an appropriate course of action. An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).

Investigation

d.   The investigation should be conducted by either a designated member or members of management or, if deemed appropriate, an agreed third party. The investigation should be conducted thoroughly, objectively with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).

e.   The investigation should be governed by terms of reference, preferably agreed between the parties in advance.

f.   The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both the complainant and alleged perpetrator(s) may be accompanied by a work colleague or employee/trade union representative if so desired.

g.   Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within an agreed timeframe. On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.

h.   Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.

i.   The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation.

Outcome

j.   Should management decide that the complaint is well founded, the alleged perpetrator(s) should be given a formal interview to determine an appropriate course of action. Such action could, for example involve counselling and/or monitoring or progressing the issue through the disciplinary and grievance procedure of the employment. 2

k.   If either party is unhappy with the outcome of the investigation, the issue may be processed through the normal industrial relations mechanisms.

Confidentiality:

9.       All individuals involved in the procedures referred to above should maintain absolute confidentiality on the subject.

Training/Awareness:

10.     It is considered that all personnel who have a role in either the informal or formal procedure - e.g. designated members of management, worker representatives, union representatives etc — should be made aware of appropriate policies and procedures which should, if possible, include appropriate training.

The central issue in this case is the fact that the worker’s complaint was being investigated by a party to the grievance and that he was married to the person whom the complaint was also made against.

The implied term in an employment contract concerning trust and confidence calls for a serious allegation to be heard without any perception of bias. The allegation of physical assault required the employer to ensure that there was an arm’s length review of the allegations. Unfortunately, that did not happen in this case. Based on what is required both under statutory codes relating to grievance handling and specifically to bullying this was a serious failing.

Breach of codes