Worker

Employer

Anonymised Parties

Security Officer

Security Organisation

Representatives

Ms. Anna Rosa Raso, ESA Consultants

Self-Represented

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00045093-001

07/07/2021

The Worker commenced employment with the Employer on 2nd July 1998. On 7th July 2021, the Worker referred a dispute within the meaning of the Industrial Relations Acts to the Commission. Following the Employers election to engage in the dispute, a hearing in relation to the same was convened for, and finalised on, 1st July 2022.

The dispute involves an allegation by the Worker that the Employer did not abide by their own internal procedures in relation to an internal inter-personal dispute. The Employer, by response, denied the allegations raised by the Worker and submitted that they have complied with all relevant policies and the principles of natural justice in their investigation of the dispute.

Both parties issued substantial written submission in advance of the hearing. These were expanded upon, and contested by the opposing side, in the course of the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker submitted that on two separate occasions, falling on 21st and 28th June 2020, she raised issues regarding her supervisor’s conduct to a member of management. On these occasions, the Worker’s complaints were ignored, and no attempts were made to resolve the issues. In particular, she submitted that the person in question was not spoken with and she was not informed of other, more formal avenues of progressing her complaint.

On 22nd October 2020, following a further incident involving the supervisor, the Worker commenced a period of certified sick leave. Following some discussions on the matter, the Worker referred a formal grievance in accordance with the Employer’s internal policies on 24th November 2020. Whilst mediation was initially offered, and accepted by the Worker, the respondent to the complaint did not agree to the same and the matter proceeded to formal investigation. Following the recusal on the initial investigator appointed, the formal investigation commenced on 2nd January 2021. Thereafter, on 1st March 2021 the investigator issued an outcome report. This report did not uphold any of the Worker’s complaints. While the Worker was informed of her right to appeal the outcome, she was not provided with a copy of the report and consequently could not make an informed decision in relation to the same. Following a series of correspondence on the issue, the Worker received the full report on 6th April 2021, some five weeks later. On review of the same, the Worker elected to appeal the initial findings. Following a review of the relevant paperwork, the appeal officer upheld the original finding.

The Worker, through her representative, raised a number of issues regarding the process adopted by the Employer. Firstly, she submitted that the initial, informal, process did not engage properly with the complaint and did not advance the issue in any material fashion. The Worker submitted that this is contravention of internal policy and ultimately served to elongate the process.

Secondly, the Worker submitted that the investigator selected to investigate the complaint was not appropriately trained, again in contravention of the Employer’s internal policies. She submitted that, potentially as a result of the same, the investigator failed to properly address her concerns and unnecessarily limited the scope of the investigation.

The Worker submitted that the process was delayed by approximately five weeks by the Respondent’s failure to provide a copy of the outcome report. She submitted that this delay was unnecessary and caused her significant difficulty.

Finally, the Worker submitted that the appeal failed to properly consider all relevant evidence. In particular, she submitted that the appeal referenced her appeal correspondence and the initial reports only. She stated that it was apparent that the appeal was considered for a period of 24 hours only and was apparently conducted in haste. She submitted that she was not consulted or interviewed as part of the process. The Worker submitted that the findings of the appeal that “no new evidence was presented” by her was in breach of internal policy when she could not, by the terms of that policy, present new evidence at the appeal stage. On foot of the same, she submitted that she was denied her right to effective representation.

By response, the Employer denied that the allegations raised by the Worker and submitted that the process adopted in investigating her complaints complied with their internal policies and the principles of natural justice.

At the outset, the Employer agreed with the timeline of events set out by the Worker. Regarding the first issue, they submitted that the informal approach is designed to deal with complaints in a timely and discrete manner. They submitted that this is what the Worker’s manager attempted in the first instance, however given the nature of the same, the matter required a formal investigation.

Further to the same, the Employer submitted that while the Complainant took issue with the investigator’s lack of training, her initial complaint, and internal appeal, did not raise concerns in this regard. In relation to the Worker’s allegation that the investigator narrowed the scope of the investigation unnecessarily, the Employer stated that it was the Worker that selected the relevant procedure for the investigation of the complaint. 

Regarding the appeal of the matter, the Employer submitted that the relevant procedure states that such a process is “based” on the original investigation file. They submitted that the purpose of the appeal is not a re-hearing of the grievance but a review of the process adopted and outcome reached. While it was accepted that clarification was sought from the original investigator and the Worker’s line manager during this process, no further statements were taken from the Worker or the responder to the complaint at this time.

The present dispute relates to the manner by which the Employer processed an internal inter-personal dispute. From the initial engagement on the informal level, to the final appeal of the matter, the Worker has submitted that the Employer was in breach of their own procedures in respect to the process adopted.  

The first point of the dispute relates to the initial, informal process adopted. The Worker submitted that following her report in respect of the same, her issues were not brought to the attention of the party concerned and that the complaint was improperly handled. In this regard it is apparent that when the Worker first sought to bring these concerns to management, the issues were not brought to the attention of the relevant person. By the Worker’s account, these concerns, which were serious in nature, were effectively ignored and related issues continued thereafter for a period of time.

In this regard, an informal step in such policies often seeks to examine a common-sense and non-legalistic method of resolving the dispute in question. While the manner in which this may occur is not normally prescribed, in the normal course it would involve speaking to the respondent to the allegation and seeking to resolve the issues in a discrete manner. Further to the same, in the event that the informal process does not resolve the issue, it is important that person making the complaint is informed of the formal process and the method by which the complaint may be pursued. In the present case, this is not what occurred and it is apparent that the Worker had to raise a formal complaint herself some months later in order to progress the matter. Having regard to the foregoing, I find in favour of the Worker regarding this initial point. In this regard, the correct handling of a complaint by the person to initially receive the same is an important part of an internal process. 

Regarding the second point raised by the Worker, it is agreed that the person appointed to investigate the grievance had not completed the relevant training in this regard. While this is far from ideal, and in breach of the Employer’s own internal procedures, this point on its own does not serve to negate the process as a whole. In this regard, I accept the Employer’s submission, that no issue regarding the training or experience of the investigator was made during the process or on appeal. While the Worker did submit that the investigator unnecessarily narrowed matter during the investigation, it is apparent that this arose as result of the particular process invoked by the Worker and not as result of a deficit of knowledge or experience on the part of the investigator.

Finally, the Worker raised issue with the manner by which the appeal was processed. In particular, the Worker was concerned the appeals officer sought further information from some the parties involved but not the Worker herself. She submitted that this had the effect of preventing her from making representations at this point of the process. Having examined the relevant information, it is apparent that the persons from whom the information was sought were the investigator and the Worker’s line manager. In this regard a distinction may be drawn between theses persons, who were charged with the procedural aspects of the investigation and the actual witnesses to the events in question. While the appeals officer sought to query some procedural aspects as part of their review, it is apparent that they did not conduct any form of re-investigation of the primary facts and nor were they charged to do so.

This being the case, I note that some on the language used in the appeal outcome is somewhat contradictory. The second page of the same refers to nine of the initial complaints and dismisses the appeal of the same on the grounds that “no new evidence is provided by the Appellant in support of her views”. This position contradicts the stated purpose of the appeal, and the Employer’s subsequent submission, in that the Worker is prohibited from introducing new evidence at this stage of the proceedings. However, I further find that this statement must be read in conjunction with the later part of the paragraph, whereby the appellate officer finds that,

“I am satisfied that the Investigating Officer…fully discharged his obligations under the policy and conducted a thorough and impartial investigation and that the appropriate steps were taken in this manner.”

In this regard, while it is apparent that some of the language employed in this paragraph is, at best, unclear, it is further apparent that the appellate officer discharged their obligation under the internal policy.

Having regard to the totality of the information presented, I recommend partially in favour of the employee. It is apparent that while there were some procedural breaches on the part of the Employer, most notably in relation to the initial handling of the complaint, the process adopted thereafter was broadly in line with internal procedures and natural justice.

Having regard to the totality of the information presented, I recommend partially in favour of the Worker. In circumstances whereby the internal process is finalised, I recommend that the Employer pay the Worker the sum of €2,000 in compensation in settlement of the dispute.

Internal Procedures, Training, Initial Report