Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

  N/A

Inhouse Employee Relations Representatives

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001388

12/05/2023

The Employee commenced working as a sessional psychologist for the Employer in November 1990. She has worked full-time since 1992, working 35 hours per week and earning approximately €2,531 net per fortnight. On 3 February 2023, the Worker invoked the Employer’s “Dignity At Work Policy” and made a formal bullying complaint against her Line Manager (the “Bullying Complaint”). The Worker takes issue with various aspects of the Employer’s investigation of her Bullying Complaint and has engaged in extensive correspondence with the Employer regarding the same. On 12 May 2023, the Worker submitted her dispute to the WRC.

The Worker made detailed written and oral submissions.

In 2014, the Worker commenced reporting to her Line Manager. The Worker outlined that their working relationship was “largely uneventful” until February 2022 when “there was a resumption of unfair treatment in respect of concerns arising”. The Worker’s subsequent request for a new Line Manager was refused and her working relationship with her Line Manager suffered “significant deterioration”. On 3 February 2023, the Worker invoked the Employer’s “Dignity At Work Policy” and made a formal Bullying Complaint.

The Worker’s dispute concerns the investigation of her Bullying Complaint and encompasses four distinct complaints:

1. The Worker is seeking a full, formal, written response from her Line Manager to her Bullying Complaint. The Worker outlined that she is prejudiced by not having full knowledge of her Line Manager’s response to her Bullying Complaint.

2. The Worker raised objections to the external independent investigator appointed to investigate her Bullying Complaint. She did not agree with the Terms of Reference or Methodology. The Worker raised concerns of bias on the part of the investigator.

3. The Worker outlined that the Terms of Reference were weighted against her in relation to the independent investigator’s role regarding disciplinary proceedings.

4. The Worker asserted that the Employer should provide a stenographer to provide a transcript of all interviews conducted as part of the investigation into her Bullying Complaint.

During the Hearing, the Worker withdrew her complaints numbered 1 to 3 inclusive. In short, the Worker accepted the Employer’s explanations in response to the same. It was also noted that the external, independent investigator withdrew from the investigation on 18 September 2023 due to her assertions of “bias” – thereby rendering her complaint about him moot.

The Worker accepted that the only matter remaining for consideration was her stenographer complaint.

Stenographer Complaint:

The Worker took issue with how the independent investigator would record the interviews conducted as part of the investigation into her Bullying Complaint against her Line Manager. The Worker pointed to section 20 of the Terms of Reference. The Worker outlined that the investigator would employ a manual note-taker and/or use audio-records of interviews (with consent), which would not be provided to her. Instead, she outlined that the interviews would be reduced to a "Summary Note" concerning each witness. The Worker outlined that this “poses considerable constitutional difficulty for [her] as it flies in the face of openness, transparency and fairness of procedures.” The Worker queried how she could “prove and / or challenge any or all evidence on the balance of probabilities” on the basis of such “Summary Notes”.  She outlined that “the ‘facts’ will be essentially established in confidence, with no regard for accountability.” The Worker outlined that this procedure will keep her “in the dark” and that it has adverse consequences for her. She further outlined that the Employer has previously provided a stenographer in other internal matters and that she wants a stenographer for the investigation of her Bullying Complaint.

The Employer provided a copy of its “Dignity At Work Policy” (the “DAW Policy”).

The Employer outlined that the Worker requested that her Bullying Complaint be progressed directly to the “Formal Procedure”. This request was screened in line with section 8.7 of the DAW Policy. Consequently, it was determined that it was appropriate to progress the Worker’s Bullying Complaint to the “Formal Procedure”.

The Employer stated that section 8.9 of the DAW Policy sets out the principles governing the “Formal Procedure: Investigation” stage. Section 8.9.4.4 provides:

“A written record/minute will be kept of all meetings and will be treated in the strictest confidence. A record which represents an accurate account of the discussion will be given to the relevant party who will be invited to comment/amend. If the investigator doesn’t agree with the proposed amendments/comments then both records of the meeting will be kept and appended to the final report. On some occasions, the investigator(s) may determine that a written transcript of the meeting is necessary.”

The Employer outlined that when a complaint is at the “Formal Procedure: Investigation” stage, as in this case, an independent investigator is appointed. The Employer outlined that it sources its independent investigators from two panels – an internal panel and a panel from the Office of Government Procurement. The Employer outlined that independent investigators have no knowledge of the personnel who are party to a complaint.  

The Employer stated that the independent investigator is responsible for drawing up the Terms of Reference, which are based on an agreed template and in line with its DAW Policy (outlined above). The Employer explained that under section 20 of the Terms of Reference, a notetaker will take notes of all interviews and produce a “Summary Note”, which is a record of the meeting. The Employer outlined that the interviews will be audio recorded if the interviewee consents, as an aid to the notetaker. The Employer outlined that a draft of the “Summary Note” is provided to each interviewee and account is taken of any comments concerning the accuracy of the “Summary Note” and/or any subsequent relevant comments for the record. The Employer further outlined that the Worker and her Line Manager are provided with an opportunity to comment on the interview notes.  The Employer outlined that the Worker’s assertions regarding “Summary Notes” are “baseless and a deliberate distortion of the process.” The Employer further outlined that this methodology is employed as standard in workplace investigations.

The Employer outlined that the use of a stenographer is a matter for the independent investigator alone. The Employer further outlined that the use of a stenographer is the exception and not the rule. The Employer stated that, by way of example, stenographers are sometimes used in disciplinary matters where there are very serious sanctions at play. The Employer submitted that this Bullying Complaint, brought by the Worker against her Line Manager, is not such a matter.

Finally, the Employer outlined that the provision of a stenographer would be a considerable expense to it. The Employer outlined that this expense would “would likely double or treble the costs of theinvestigation and would establish a precedent for further workplace investigations to bear those considerable costs.”

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

Code of Practice:

I note that the relevant Code of Practice governing this area is “S.I. No. 674/2020 - Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020”. This Code of Practice provides guidance for employers, employees and their representatives on good practice and procedures for addressing and resolving issues around workplace bullying. The Code of Practice is in accordance with the principles of natural justice and fairness.

Findings and Conclusion:

On the basis of the information before me, the Terms of Reference template is in accordance with the Employer’s DAW Policy. The DAW Policy does not provide that a stenographer must be provided in the course of an investigation. Moreover, there is nothing in the abovementioned Code of Practice which states that a stenographer must be provided in the course of an investigation.

I note that an independent investigator is appointed to investigate the Bullying Complaint. I also note that under section 20 of the Terms of Reference, a notetaker will take notes of all interviews and produce a “Summary Note”, which is a record of the meeting.  I also note that the interviews will be audio recorded if the interviewee consents, as an aid to the notetaker. This “Summary Note” is shared with the interviewee for comment. Moreover, the Worker and her Line Manager are provided with an opportunity to comment on interview notes.  Therefore, I am satisfied that there are sufficient measures in place to ensure the accuracy of the “Summary Notes”.

Finally, I note that there is also nothing before me to suggest that, in the circumstances of this Bullying Complaint, a stenographer is required. 

It is clear that the Worker has little confidence in either the Employer’s DAW Policy and / or in the investigation of her Bullying Complaint against her Line Manager. In her extensive correspondence, the Worker is challenging standard workplace investigations practice and impeding the investigation of her own Bullying Complaint. I note that, so far, one independent external investigator has withdrawn from the investigation.

In the circumstances, I find that the Worker’s dispute is without merit. I recommend that the Worker engages in a meaningful way with the investigation of the Bullying Complaint which she brought. This Recommendation is made in the unique circumstances of this case and on the basis that it will not be relied upon or quoted as a precedent in any other case.

Industrial Relations Act 1969, s.13, Bullying and Harassment Procedures, Stenographer.