Worker

Employer

Anonymised Parties

An Assistant Manager

A Semi State Body

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-00045721-001

18/08/2021

This is a dispute which is longstanding. It involves a Worker who raised his dissatisfaction against a Line Manager whom he contends engaged in bullying behaviour towards him. He was not satisfied by the local outcome.

He submitted a claim to WRC seeking an independent Investigation and compensation.

The Employer consented to the investigation under Section 13 of the Industrial Relations Act, 1969.

The case came for hearing on the first occasion on May 9, 2022 and due to illness was reconvened for January 9, 2023 , where both parties were in attendance and engaged on the claim .

The Union outlined the background to the case. The Worker had joined the Employment as a Project Manager in 2014 following a dissolution of his previous employer. He worked without incident until the appointment of a new manager in an acting capacity.

The Worker experienced an unexpected series of criticism from this Manager. He sought advice from the Union and sought to address what he believed to be bullying behaviour directly with his Manager on an informal footing , but was unsuccessful .

He escalated the matter through the Human Resources Dept in March 2018, who offered to relocate the worker. This was not feasible as it would have constituted a postponement.

The situation worsened for the worker during the last quarter of 2019, when the Manager sought to formalise the criticism further through a Performance Management process to which there was no agreement.

The Worker summarised his issues and requested a discussion with Human Resources in October 2019.

In November 2019, the Employer responded to the Worker and rejected that he had been bullied, harassed, or victimised, but countered   that the employment relationship between the worker and his then Manager was irrevocably broken.

The Employer then implementation   of a new reporting relationship for the worker.

At hearing, he expressed a complete dissatisfaction in how his concerns had been addressed by the Employer. He contended that while his early attempts to resolve the staff relations issue with his manager had been embedded in the informal Dignity at Work procedure. He had formalised a request for an independent investigation, but this had not been heeded.

He did change line management in December 2019 but remains unsettled in his role and describes not being supported.

This is set against a backdrop where hi work is being commended at corporate level.

The Union submitted an extensive thread of emails of inter party correspondence.

One email dated December 2019, relied on by the Union was contested by the Employer, who reported that this email had not been received. The Worker clarified that he had a three month medically advised sick leave around that time returning in March 2020.

The Union sought to re-activate the request for a formal investigation in June 2020, but this was rejected.

When requested to identify what might solve the dispute for the worker, the Union outlined that the worker had been very hurt by how his issues had not been properly addressed by the Employer.

The Worker wished to move forward at work in a proactive and supportive framework.

The Union opened the claim in seeking:

1 independent investigation into the complaint

2 compensations for mental anguish and reputational damage

3 an apology

4 a guarantee against victimisation

The Employer outlined that the Worker had raised staff relations issues regarding his then line manager during 2019.

The matter was taken very seriously within the informal procedure of the Dignity at Work Policy operational at that time.

The Employer exhibited an extensive thread of emails surrounding both the performance management issue and the staff relations issue.

The Employer engaged on the issue and met with the line manager in accordance with the Policy.

The Employer clarified early in the case that the worker had not raised a formal complaint of bullying at any time as he had confirmed his agreement to proceed informally.

The Employer concluded an investigation and did not identify the presence of bullying, harassment or victimisation but deemed the working relationship between the worker and the line manager as not viable. They proposed a new line management reporting relationship as an opportunity to moving forward in the case. The Worker engaged in this new process and was given additional learning supports

On November 15, 2019, the Employer wrote the following to the worker in response to an earlier communique:

“Again, I am happy to elaborate on why I felt it necessary to change your reporting structure. For your information, you, in the title of your original email, referred to the aforementioned policy, so at that point I must treat your complaint against that policy. In my role and under the Dignity at Work Policy, I must consider three parties in the decision I make when a complaint (either informal or formal) is raised with me. They are the complainant (you) the respondent (Ms X and the overall organisation. With a lens on all three, I thought it very necessary to change the reporting function for the sake of all three. You did also state that the work carried out by the team was not work you felt appropriate to your grade 7 role, and I did very much consider this also. I do not believe this to be punitive and I believe consultation took place at an appropriate level.

……

I truly hope this alleviates all of your existing concerns ……”

The worker responded some two hours later and confirmed his belief that the dignity at work policy had been breached by the employer. Nothing followed.

In June 2020, the Union sought an independent investigation.

This puzzled the Employer as they had a genuine belief that the matter had been addressed and resolved. The Employer responded to the request by outlining the chronology of the interaction.

The Employer approached the hearing slightly confused on what was being requested by the Union, who seemed in accept in July 2022 that the worker was not raising a formal complaint. The claim was to commission an independent investigation into issues raised and materials provided. If that did not manifest, then the route to WRC would follow.  

The Employer concluded that the Line Manager had since retired. The Employer was prepared to continue to support the Worker in his role but saw no merit in the claim for an independent investigation.

The Employer confirmed that they did not breach the dignity at work policy.

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

I am satisfied that this dispute involves a worker in his own right.

However, I have some unease on the passage of this case to the WRC.

The Labour Court in its Industrial Relations function has consistently set down a global and salutary commentary that parties should not look to the Court of last instance to resolve what is capable of being solved in the workplace.

In this case, I spoke frankly to the parties when I remarked that there was an over reliance on email commentary and an under reliance on the “tried and tested formula of meetings “Emails are one sided and should never be substituted for dialogue, debate, dissent, agreement.

I believe that is what has happened in this case. While reading the file, I was struck by each of the party’s genuine courage of their own convictions, without either party compromising those views.

What I found missing was a proper procedural pathway of disputes resolution.

The Worker was a member of a Union throughout this process. While I gained a considerable insight and understanding from the representations made at hearing by the Advocate, Ms Mackey, I was troubled by the absence of an earlier stage “side by side “representation in the workplace. This issue should have been managed by the Union in the workplace in a much more visible manner.

Both parties accept that the worker did not move to the formal complaint stage. I found it unusual that the Union would move to request an independent investigation of an informal matter. I found it further unusual that the Union did not gain some reassurance from the Employers responses made on that topic. They were cogent and reasoned.

I wish to commend the parties who appeared at hearing as both approached the process in a positive and bridge building way.

In my opinion, as I look at this case through the lens of “what is fair and reasonable “in a live employment, I wish to make the following comments on how this dispute evolved into the stalemate it is today.

1 The Worker joined this employment on dissolution of his old employer via expression of interest. I did not identify with a sufficient bedding in process regarding familiarisation with procedures to resolve conflict at work

2 He felt isolated by the behaviour he experienced by his former line manager and pressed the informal stage of the bullying policy

3 This coincided with a parallel process of an attempt made by the employer to manage performance without signalling just where a worker could go if they found themselves miscast in the role of an under performer i.e., a grievance procedure

4 I found that the Employer attempted to follow the informal stage of the bullying procedure. However, I found that procedure flawed and lacking in fair procedures.

The kernel of this case is that the worker did not feel at any stage that he was an active participant in his own complaint. That was a cardinal omission.

As I have stated, an over reliance on emails and an under reliance on two-way conversation goes to the root of this. As we write emails which reflect feelings and emotions, they can seem to the outsider as a diary but not a comprehensive account.

It may have helped the Worker to have received a comprehensive written outcome to the line managers response to his complaints.

However, I am clear that he did not request a formal investigation at any stage.

At hearing, there was much scrutiny of the December 2019 advanced by the worker and denied as ever having been received by the Employer.

I have reflected on this and find that this email was at best a work in progress but was not sent. At best it was a preface to a three-month period of sick leave. It did not seek an escalation to a formal procedure.

5 I was dissatisfied at the management of attendance practice adopted by the Employer in the early months of 2020. Given the strength of feeling recorded on the email threads, I would have expected a more compassionate approach from an employer.

6 I was dissatisfied at the June 2020 intervention by the Union. I would have preferred to have seen a local engagement to the benefit of both parties.

I have found some merit in this dispute. I have stated my reservations regarding addressing this dispute prematurely from an Industrial Relations Act point of view. However, If I send it back to the workplace to be resolved now, it will just continue to fester in a live employment.

Instead, I make the following recommendations to the parties in a genuine attempt to steer the ship forward for both parties and to open a pathway for the worker to work on his own resilience within the workplace.

1. The Employer must provide a comprehensive grounding in both the grievance procedure and the extremely well-structured new policy on bullying and harassment. I particularly liked the stage 2 on informal approach.

2 The Employer must acknowledge that the Worker was extremely hurt at what happened in the workplace in terms of the unilateral move in 2019. Both parties could have addressed this in a more constructive and transparent fashion.

3 The Employer should provide an agreed job description to the worker followed by an organisational announcement of the job title.

4 The Employer should host quarterly meetings involving the Director of Service and the Worker

5 Both Parties should commit to improved oral communication.

6 The Worker must have his work patterns and desk arrangements con jointly reviewed.

7 In light of the shortfall in support in the management of attendance during the three-month sick leave early in 2020. I find it fair and reasonable that the employer should offer the worker either of two options in full or final settlement of the issues remaining from 2016-2019. These issues have clearly stunted his experience at work.

1 Two Months Special leave with pay and pension protected

Or

2   €6,000 in compensation.

I wish the parties well for their mutual futures at work .

 Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I make the following recommendations to the parties in a genuine attempt to steer the ship forward for both parties and to open a pathway for the worker to work on his own resilience within the workplace.

I direct both parties to engage and consider the following proposals in full and final settlement over the  6 weeks following receipt of this recommendation.

1. The Employer must provide a comprehensive grounding in both the grievance procedure and the extremely well-structured new policy on bullying and harassment. I particularly liked the stage 2 on informal approach. The Worker should also gain familiarity on EAP, Alternative disputes resolution.

The Employer should offer and support the Worker in coaching in resilience  and safety .

2 The Employer must acknowledge that the Worker was extremely hurt at what happened in the workplace in terms of the unilateral move in 2019. Both parties could have addressed this in a more constructive and transparent fashion. It  is now time to move forward.

3 The Employer should provide an agreed job description to the worker followed by an organisational announcement of the job title.

4 The Employer should host quarterly meetings involving the Director of Service and the Worker

5 Both Parties should commit to improved oral communication.

6 The Worker must have his work patterns and desk arrangements con jointly reviewed.

7 In light of the shortfall in support in the management of attendance during the three-month sick leave early in 2020 and the fault identified in the informal stage of the earlier Policy, now corrected. I find it fair and reasonable that the employer should offer the worker either of two options in full or final settlement of the issues remaining for him from 2016-2019. These issues have clearly stunted his experience at work and need to be resolved and left behind.

1 Two Months Special leave with pay and pension protected

Or

2   €6,000 in compensation.

 8 .There is no basis to the claim for an independent investigation .

Procedural pathway of an informal complaint of bullying