Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Company

Representatives

SIPTU

IBEC

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-44743-001

22/06/2021

The case concerns an issue between a SIPTU member; the complainant ‘A’ and the supervisor in his depot, ‘B’ and the alleged failure on the part of the employer to act on harassment and bullying.

While anyone of the complaints in the grievance in isolation might be interpreted as poor communication, a pattern of behaviour on the part of the supervisor is evident and employer has failed in its duty of care to the complainant by failing to address it effectively.

The difficulty between the parties, appears to have developed in 2017 as the relationship had been unremarkable prior to that time. There were a number of incidents.

The first related to a scheduling issue on his route in the course of which B allegedly told the complainant that he had 'anger issues' and should not be on the route. He did not elaborate any further on his observations but did not withdraw them either.

The second issue was on April 2nd/3rd 2019.  On the day in question, the complainant notified B that he was unwell. He had some time to spare before his next departure at 4pm but felt he would be delayed. Having initially been helpful a short time later he expressed his dissatisfaction for his use of the designated facilities, in full hearing of the passengers.

The complainant reported the matter, and his complaint was upheld but no further action was taken, and he received no further communications despite having been subjected to considerable upset and embarrassment on a busy bus.

The third incident was on April 11th, 2019, and occurred when there was no bus for him to operate his route and this resulted in a further exchange with B. The complainant discussed the matter with a manager who agreed with his assessment of the exchange and B’s reaction but did point out his failure to call in on reaching the bus stop (which he acknowledged) and she therefore could not uphold his complaint.

The interaction outlined is, in SIPTU's view, a further example of an operational issue, outside of our member's control, being used as an opportunity for conflict and personal criticism from B. The fact that the complainant had transgressed was the focus of subsequent investigations but the context in which he did so was not given consideration.

There was a further incident on July 30th, 2019, and arose from the fact that a communications resource which, for example will advise of a relief driver is not available.

On this occasion, having not been advised by either of the recognised communication methods, the complainant had no reason to assume that a relief driver was not available to take over the remainder of his route. After a delay, the passengers had to disembark and wait to join the next scheduled bus. It appeared that B had expressed his dissatisfaction with the complainant and blamed the disruption on him.

In her review of this incident, the manager did find that B had reacted inappropriately, but nothing further happened.

There were further incidents on October 4th, 2019, June 24th, 2021, and two others undated.

SIPTU' says that these grievances were never treated with the gravity they deserved. Regardless of whether or not senior management felt there was any merit the grievances, they failed to address the breakdown of the working relationship.

The fact that a senior manager investigated some of the incidents locally and submitted her reports, on a number of occasions vindicating the complainant’ claim of unfair treatment, without taking further action demonstrates management reluctance to fulfil their obligations.

The incidents outlined above fell within the parameters set out in the respondent Dignity and Respect Policy, but the employers' responsibilities, as set out in that document, were not adhered to).

Management’s logic that an issue examined in the context of the Grievance Procedure cannot be re-examined under the Dignity and Respect Policy is unacceptable but is particularly unsatisfactory when the Grievance Procedure was flawed, and the outcome did nothing to progress the situation.

The findings of the investigation did not accurately reflect the evidence and contained numerous inaccuracies. They failed to even reflect the investigating manager’s reports.

It is noteworthy that none of the complainant’s grievances were upheld and the reasoning for this is based on assumptions and inaccurate assessments of the testimony. At an absolute minimum, we would have expected the investigators to acknowledge MB’s part in the communication breakdown, but they appear to have formed the view that he was helpless and the victim of a colleague with a vivid imagination.

Despite being described as a '...comprehensive and fair investigation...', it is obvious that no weight was ascribed to our member's stated concerns or to any investigations which vindicated his view. The decision not to speak to several witness appears is further evidence of same. Most surprising was the decision not to interview Ms. Darker about her reasons for upholding several of our member's grievances and to use her knowledge of the incidents to inform their investigation.

Mediation was offered, but in the context of a deeply flawed process, and the apparent dismissal of every one of the grievances as 'without foundation', it was wrong to expect him to participate in such a process.

SIPTU supports this option where the parties are in a position to move on from the original conflict, but it is obvious that our member does not feel that that has been achieved.

Correct procedures have been followed throughout and, even if senior management had doubted the validity of the grievances, it seems extraordinary that no appetite to repair the working relationship appears to have existed.

Having said that, the manager who was tasked with investigating a number of the incidents found that there was merit in the complaints and communicated that further up the line; it was at this point when, on several occasions the validity of those complaints had been acknowledged by the investigator, that those complaints appeared to vanish, and no further action was taken.

The claim relates to an investigation under the Dignity and Respect Policy and was submitted to the WRC on 30 September 2021.

January 2020, SIPTU wrote to the complainant requesting an investigation under the Dignity & Respect Policy with a complaint of bullying of him by MB.

He had previously raised some of the issues contained previously, as individual grievances, which were the subject of separate company grievance procedures. Notwithstanding the fact that some of the issues had previously been the subject of internal grievance processes, the company did agree to include those issues within the Dignity and Respect investigation.

The investigation commenced on February 17th, 2020. The complaint included a number of complaints from 20178 to 2020.

The complaints, which are dealt with in the investigation report are, in summary.

December 4th, 2017 –, Bus departure time.

April 3rd, 2019-Issueofusingatoilet

April 11th, 2019 - Being ‘berated over the radio’

July 30th, 2019 - No relief driver on Eden quay

October 15th and 16th 2019 – Duty ahead taken out of the system.

October 6th, 2019 – Asked to switch bus

In carrying out the investigation, the respondent appointed an investigation team which spoke to the complainant who was represented by his union. The team spoke to all relevant witnesses who were named in the investigation and provided all relevant information in the investigation to the parties who were the subject of the investigation.

It also provided relevant contributions made in the course of their investigations to the parties in order that they could respond if so wished. The team considered all information collated with respect to each point of the allegations.

The team, conscious of their obligations to both the complainant making the allegations and the individual against whom the complaint was made were careful to evaluate the evidence which they had collated to a) determine whether the facts had been established and b) to determine if the facts established met the definition of bullying.

The overall conclusion of the report was that the investigation team found that the issues complained of were not established and did not constitute bullying as defined in the company policy.

The findings were issued on November 27th, 2020. The allegations, investigation process and conclusions are contained in the comprehensive report which was put together on foot of the company investigation. (A copy of the report was submitted).

The complainant was given with the opportunity to appeal the decision and did so. It did not succeed, and the original findings were upheld.

Following this, mediation was proposed by the appeal decision maker, but this was rejected by the complainant.

It is not for an Adjudicator to ‘re-investigate’ the matter nor to substitute their finding for the finding of the respondent.  The findings of the investigation are based on a reasonable and comprehensive investigation and therefore must stand unaltered. Indeed, the company has done all they can to investigate and seek to resolve the matters to this point.

There is nothing in the actions of the respondent which would indicate that a full and comprehensive investigation was not conducted.  It must be borne in mind that the investigation was taking place at a time when there was a significant public health emergency. Notwithstanding this, the respondent allocated a huge amount of time and resources to investigate the issues.

The company did not find that the allegations substantiated a complaint of bullying or harassment as defined. They undertook a comprehensive investigation which provided an outcome which cannot be reasonably questioned. In circumstances where the allegations were not upheld it is unreasonable to expect the respondent to take any action which could be viewed as punitive against either party.

The respondent sought to address the working relationship issue by proposing independent mediation. This has been refused by the claimant while being accepted by the other party. The company cannot compel both parties to engage in mediation, they can only recommend it.

The company however has sought to resolve any working relationship issues through the offer to facilitate independent mediation. This offer was refused. The company actions have been reasonable in the circumstances. 

This matter was first heard on June 8th, 2022.

 In the course of the hearing there appeared to be sufficient good will to try to find a solution directly between the parties that an adjournment was agreed to enable the parties to do so.

It appears as if this did not bear fruit and on November 11th, 2022, the WRC was notified that no further progress was likely to be made and that a recommendation should issue.

I proceed to do so on the basis of the initial partial hearing of the issues and also on the written submissions of both parties which have been fully taken into account.

While I note the failure to resolve matters since the hearing, (and no information has been made available to explain this nor is it required) this comes as a disappointment having regard to the nature of the complaints raised.

They are all relatively amenable to amicable resolution and it is regrettable that whatever it was that came in the way of such resolution did so.

It may or may not have a connection to the rejection by the complainant of mediation after the workplace investigation appeal but either way I wish to comment on some of the issues arising there, and the rejection by the complainant of the option to mediate before the matter was referred to the WRC.

As will be seen above, the union has stated on behalf of the complainant.

Mediation was offered, but in the context of a deeply flawed process, and the apparent dismissal of every one of the grievances as 'without foundation', it was wrong to expect him to participate in such a process.

SIPTU supports this option where the parties are in a position to move on from the original conflict, but it is obvious that our member does not feel that that has been achieved.

Correct procedures have been followed throughout and, even if senior management had doubted the validity of the grievances, it seems extraordinary that no appetite to repair the working relationship appears to have existed.

This conditional approach to dispute resolution is entirely contradictory and betrays a misunderstanding of the nature of mediation as a tool in dispute resolution.

Of course, there must be some reasonable prospect that mediation might resolve an issue but the bar for that ‘reasonable prospect’ is a very low one. After all, mediation is only used where there is a conflict, and it is in the mediation process that the party’s willingness to ‘move on from the original conflict’ will be tested. This cannot be a pre-condition for actually entering the process.

Therefore, it was not ‘wrong’ to expect the complainant to participate in such a process.

It was the obvious and best means of resolving outstanding difficulties (especially of the inter-personal nature in this case) and there are too many examples of workplace disputes in which complainants veto mediation. Mediation only arises in situations of conflict.

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

Section 21 of the Mediation Act 2017 (which does not apply to employment disputes) and jurisprudence in the UK in particular 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 the system of employment tribunals where no costs are awarded.

But this possibility of adverse costs findings is a clear statement of public policy intent that, while participation remains voluntary, there may be consequences to unreasonably rejecting 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 without consequences should be viewed in the light of these considerations, and HR and trade union practitioners may have to play catch up with this new reality.

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

It is well established that a WRC adjudicator will not entertain cases 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 this must include 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 engage with current trends in amicable dispute resolution and engage on this issue in respect of individual grievances in particular and the provisions of the Code of Practice on grievance and discipline (SI 146/200) look very dated in the context of these developments.

It ought not be sufficient that a person will eschew alternative and amicable dispute resolution simply because they want a second bite at the cherry at the WRC.

This is what has happened in this case.

I am satisfied that the respondent took the proper steps required on receipt of the complaint. The complainant was clearly disappointed with the outcome, but this will often happen in such processes.

I have read the investigator’s report and it indicates that a proper and thorough investigation took place. The complainant has not made out any persuasive case for the setting aside of the findings which could only happen in very rare circumstances.

The fact that the complainant was not happy with the outcome is not one of them.

Therefore, I do not propose to further review the merits of the complaints, as can be seen above they all appear to be relatively trivial, although taken together they provide evidence of a relationship that needs attention.

In that context, the contention in the union submission that the respondent had ‘no appetite to repair the working relationship appears to have existed’ is simply untrue and not borne out by the facts.

Indeed, on the evidence before me it is the complainant who appears to have ‘no appetite to repair the working relationship’ unless it is preceded by a vindication of his position.  Unfortunately for that position it has already been determined both by the investigation and on appeal and that aspect of the matter, i.e., the specific complaints are now closed.

He must move on, and my strong recommendation will be that one last effort should be made to resolve the problem in the working relationship with the support of a skilled and accredited mediator with 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.

If a basis cannot be found to do so, the matter is concluded, and I can make no further recommendation beyond what follows.

I recommend as follows.

The process of investigating the complainant’s grievances has concluded, and the outcome should be accepted by both parties.

The primary parties (A and B as they are referred to above) to the initial dispute should agree to engage with a certified external mediator for a preliminary meeting with a view  to an amicable resolution of the inter-personal difficulties between them in a full mediation.

Mediation, grievances