Worker

Employer

Anonymised Parties

A Compliance Officer

A Waste Company

Representatives

 Arthur Cox  

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 - 00000282

18/05/2022

The complainant says that she was consistently bullied by a former manager in her employment and that the respondent failed to provide her with support.

Her grievance was investigated but she says it was not done to the standard expected by the WRC.

She appealed the decision stating the grounds of the appeal as follows.

I want to appeal on the grounds that none of the issues 1 raised were dealt with in a manner in which I am aware the WRC would accept i.e. I have distinct instances of bullying and undermining which I categorically checked with the WRC and which this investigation did not accept.

There is also the fact that the only significant outcome of my raising a grievance was a move to focus on my role which I feel is a penalty against me for having raised this in the first instance and from which, not only should I have been protected but it should have been acceptable or compliant practice.”

Her appeal was rejected. She says that mediation was ‘not successful’.

On February 15th, 2022, the complainant raised a complaint related to bullying and discrimination and took issue with treatment she alleged she was receiving from her line manager at the time, she noted that he “constantly undermines my position…basically has a lack of respect”.

By way of general background, the respondent made an offer of workplace mediation to the complainant, which she declined.

Following receipt of the complaint, the respondent carried out an internal investigation under its Grievance Procedure.

A senior manager was appointed to investigate the grievance under the Individual Grievance Policy & Procedure and Bullying and Harassment Policy. The investigator had no prior involvement in, or knowledge of the matters raised, he was employed in a different part of the business. Terms of Reference for the investigation were submitted.

On February 21st, 2022, the investigator invited the complainant to a meeting to discuss her complaint and while she was informed of her right to be accompanied by a colleague or union representative at this meeting, she attended alone. The investigation focused on three elements within the grievance, summarised as follows:

(a)            the complainant’s assertion that there was a deliberate lack of effective communication from her line manager and that he bypassed her to deal with administration staff and operatives directly, undermining her authority.

(b)            Her assertion that her line manager deliberately excluded her and singled her out, including omission from a WhatsApp group set up by her line manager; and

(c)            Assertions that her line manager interfered with her work.

The investigator met with the complainant on February 25th, 2022, to discuss her grievance and he also met the respondent in the investigation, and a member of the HR team.

The complainant was informed of the outcome of the investigation on March 10th.While the specific complaint of bullying and discrimination was not upheld, the investigator acknowledged that there was room for improvement in terms of role clarity and also in interpersonal relations.

This letter also referred the complainant to supports available under the EAP. The complainant appealed this decision on the following basis.

“I want to appeal on the grounds that none of the issues I raised were dealt with in a manner in which I am aware the WRC would accept i.e. I have distinct instances of bullying and undermining which I categorically checked with the WRC and which this investigation did not accept.

There is also the fact that the only significant outcome of my raising a grievance was a move to focus on my role which I feel is a penalty against me for having raised this in the first instance and from which, not only should I have been protected but it should have been acceptable or compliant practice.”

A senior manager within the respondent group was appointed to hear the appeal and an appeal hearing was held on April 26th, 2022. Draft notes were circulated to the complainant for comment, and she provided feedback in relation on them.

On May 12th, 2022, the complainant was informed that her appeal was unsuccessful.

“Having fully considered all points raised by you as part of your appeal and the submissions you made on your own behalf, I am satisfied that the outcome of the grievance process with [the investigator] was appropriate. I am unable to uphold your appeal and I suggest that formal mediation with an external and independent provider is the best approach to resolve the issues you raised and to re-open positive communication channels. In relation to the WhatsApp group, we have advised your line manager to ensure you are added to this group with immediate effect.”

The complainant states in her Complaint Form that:

“I was consistently undermined + bullied by a former manager with no support by [the respondent].”

The respondent strenuously denies that the complainant has been mistreated at work and that she received no support. As already outlined, her complaints were dealt with in a serious and sensitive manner, in accordance with fair procedures.

An investigation was swiftly initiated, and the complainant was informed of the supports available to her under the Respondent’s EAP on various occasions throughout the investigation process. Furthermore, an appropriate remedy to preserve positive working relations i.e., professional, independent mediation was recommended. The complainant confirmed she did not wish to engage in mediation with the respondent at that time.

The Complainant, based on all of the evidence provided by her cannot meet the threshold required to substantiate the very serious allegation of bullying. In the Ruffley v The Board of Management of St Anne’s School [2017] IESC 33 judgment the Supreme Court has made it clear that to amount to bullying the standard is repeated inappropriate behaviour undermining the individual’s dignity at work.

O’Donnell J, stating:

“I … agree that each component can usefully be considered separately and sequentially. However, I would caution against viewing these three matters as separate and self-standing issues as if in a statutory definition. To some extent these terms take their colour from each other and the concepts are incremental. It is, in my view, important for example to recognise that in considering the question of repeated conduct, it is necessary to remember that what is required to be repeated is inappropriate conduct undermining the individual’s dignity at work and not merely that the plaintiff be able to point to more than one incident of which he or she complains.”.

and

“Ultimately, while analysis may be facilitated by looking at the separate elements, it must be remembered that it is a single definition and a single test: was the defendant guilty of repeated inappropriate behaviour against the plaintiff which could reasonably be regarded as undermining the individual’s right to dignity at work?”

and

“In my view, a telling feature of the definition used … is the distinctive language used in the statutory definition. At each point the statutory drafter has chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.”

On this basis, the complainant cannot successfully contend she was the victim of bullying.

The complainant has elected to engage the Industrial Relations Acts but has failed to offer any constructive suggestions as to what she considers an appropriate remedy or resolution to her complaints.

In contrast the respondent has offered means to resolution which have been rejected by the complainant. It is well established that under the 1969 Act, an effective remedy is that an appropriate investigation is undertaken to resolve the matter at hand. The respondent moved quickly to investigate the complaints. The investigation and appeal complied with the principles of natural justice and fair procedures.

Furthermore, in interpersonal matters, it is submitted that the preferred remedy is to use an available mechanism to restore professional working relationships and to avoid adversarial processes with “winners” and “losers”.

In Complainant v Respondent ADJ-00010700 the Adjudication Officer stated:

“I recommend that an independent, agreed mediator be appointed to assist the parties in resolving outstanding issues between them…”

In this case, the investigator recommended that an independent mediator be appointed to resolve issues between the complainant and her line manager. The appeals officer subsequently confirmed that recommendation.

The complainant informed the respondent that mediation was not her desired outcome and that her preference was to proceed to the WRC. The complainant stated she did not trust the respondent to engage in the process and advised the respondent that she would seek the assistance of the WRC.

On the basis of the above, it is submitted that the appropriate remedy has already been offered to the Complainant. The respondent treats bullying and discrimination in the workplace with the utmost seriousness and moved quickly to investigate the claims of the Complainant. The Complainant’s complaints were fully investigated and were not upheld.

The complainant has not discharged the burden that falls on her under the EEA to adduce prima facie facts in relation to her complaint.

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

While this complaint was associated with another complaint under one of the employments rights statutes (and that is addressed separately) the complainant offered only the scantiest information about what precisely her complaint was.

It is important to identify the limits of the jurisdiction (in a loose sense of the word) of the WRC in cases under this Act.

The complainant is quoted in the respondent’s submission above as justifying her appeal on the basis that “none of the issues 1 raised were dealt with in a manner in which I am aware the WRC would accept i.e. I have distinct instances of bullying and undermining which I categorically checked with the WRC and which this investigation did not accept’.

The complainant offered no supporting argument for this highly improbable assertion, or indeed for much else.

It is likely that there have been cases where Adjudicators (and Rights Commissioners before them) have found deficits in the conduct of investigations.

Indeed, the existence of such deficits is precisely the area in which the jurisdiction of the WRC just referred to may be triggered.  However, the inference that the complainant was ‘told’ by ‘the WRC’ that the response of the respondent in this case would not be acceptable is not credible.

This is so for two reasons. The first is that such a conclusion could only be reached after a hearing of the issues at adjudication. The complainant offered no submission on this point.

The second is that now having done so in the course of this hearing, the submissions above indicate that the respondent acted promptly and efficiently and with due regard to all of the procedural requirements for the processing of the complainant’s grievance.

The fact that the complainant’s grievance was unsuccessful will not, on its own, in the absence of some procedural flaw of a type which has not been identified by the complainant, induce an Adjudicator to second guess a properly conducted process at the level of the workplace.

I have read the outcome letter from the investigator, and it is clear that he conducted a thorough review of the complaint and concluded that while it did not meet the relatively high bar for bullying (and see the respondent references to Ruffley above) he saw some merit in her grievance at a lower level of gravity.

 In that regard her complaint was partially upheld.

Following both the grievance investigation and the appeal the complainant was invited to engage in mediation and she refused to do so, and this was further proposed by the respondent’s solicitors in October 2022.

I find that the respondent conducted a fair process, and the complaint does not succeed on the basis of the merits of the very limited case made by her, but it may be helpful to add the following in relation to her rejection of mediation.  (These are comments I have made in previous recommendation on this point, and do not arise exclusively in this case).

While mediation is a voluntary process, it is now well established in the world of commercial mediation that there may be serious consequences for failing to engage, or even for behaving unreasonably at the mediation.

The idea that the requirement for consent gives a person a right of unconditional veto is significantly at odds with current thinking.

The Mediation Act 2017 (which does not apply to employment disputes) and jurisprudence here and in the UK have set up for the first time the prospect of adverse costs findings, even where a party succeeds at litigation (subject to certain exceptions (See Dunnett v Railtrack [2002] EWCA Civ 302, Halsey v Milton Keynes General NHS Trust (2004) EWCA Civ 576 and similar cases)

The situation is different in respect of workplace disputes and in the system of employment tribunals where no costs are awarded. But this is a clear statement of public policy intent that, while mediation remains voluntary, there will be consequences for a party who unreasonably rejects amicable dispute resolution, which is the preferred option.

Therefore, the idea that the consent principle means that a person may simply veto participation in mediation is challenged by these developments, and HR and trade union practitioners need to engage with these developments.

Because there are ways in which this does have consequences for cases to be heard under this particular legislation.

It is well established that a WRC adjudicator will not entertain cases under the Industrial Relations Act in circumstances where internal procedures have not been exhausted.

There is a powerful argument, on the basis of the public policy point just made that ‘internal procedures’ must now extend to mediation, where the circumstances are propitious, and subject to the type of exceptions in the Milton Keynes Trust case.

Trade unions and employers may need to absorb current trends in amicable dispute resolution and apply them in respect of individual grievances in particular.  

The provisions of the Code of Practice on Grievance and Discipline (SI 146/200) look very dated in the context of these developments, if it is considered that the ‘informal resolution’ step is some sort of discretionary option; it is not.

Informal resolution and mediation are no longer alternatives to the dispute resolution framework; they are an intrinsic part of it.

It will not be sufficient that a person eschew alternative and amicable dispute resolution simply because they want a second bite at the cherry at the WRC. These form part of the workplace procedures which must be availed of before a referral to the WRC.

In this case, my recommendation below is that the complainant accept that the matters she has raised have been disposed of.

Should there be any lingering issue which the complainant wishes to see resolved she should accept the respondent’s offer to engage in an amicable dispute resolution process, with the support of a skilled and accredited mediator who has good experience of workplace conflict.

At the very least the complainant should be required to attend a preliminary meeting with a mediator to better understand the process and its potential.

Otherwise, the matter is concluded, and I make no further recommendation.

I do not uphold the complaint and find that the matter has been fairly processed to a conclusion by the respondent. I recommend that the complainant seriously consider agreeing to a process of amicable dispute resolution to address any residual issues, but otherwise the complaint is disposed of.