Worker

Employer

Anonymised Parties

Building Security Officer

Facilities Management Company

Representatives

  Self-Represented

Lisa Moloney IBEC

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-00048080-001

10/01/2022

The Worker commenced employment as a building security worker on 6 January 2015 at a building that was managed by a facilities management company. His employment with the current employer arises from a transfer of undertakings. The Worker claims that he encountered repeated unwanted behaviour from an employee of a client company who use the building. He made complaints through the Employer’s bullying and harassment procedures and claims that his complaint was not addressed adequately by the Employer. The Employer states that they addressed the complaints fairly, both informally and formally, but that the worker was not fully cooperative in finding solutions to the dispute.

The Worker claims that in April 2021 problems started to emerge between an employee of a client, (Ms A) who used the building, both for himself and a fellow work colleague. They found her behaviour unacceptable in the way she allocated work to them and in her general attitude and approach to them. They received constant and repetitive phone calls on issues which the Worker believed were not part of his  work allocation.   The Worker made an informal complaint, which was not resolved and later a formal complaint. The outcome was totally unsatisfactory for him because, he claims, the process used by the company was ineffective. Ms A was never interviewed during the formal process and no statements or input by his colleague, on his behalf, were considered by the employer. The Worker further argues that the appeal process was carried out by a colleague in the office of the person who carried out the investigation and therefore could not be termed as independent.   

The  Employer acted on the complaints of the Worker and met Ms A as part of the informal process.  Ms A  explained that she is often on the road, phone calls are easier for her to do while driving and it was agreed that in such instances, when on the road that phone calls are acceptable. The Employer  sent a follow up email to the Worker reconfirming what was agreed on this telephone conversation and advised that if the Worker didn’t see an immediate and sustained improvement in the client’s behaviour towards him, that his grievances could be resolved in line with the Employers  formal grievance procedure.

A formal complaint  was submitted by the Worker and  the Employer investigated it in line with stated procedures. No evidence of bullying and harassment was found. The Worker appealed the decision, but the appeal was not upheld.

At all times, the Employer adhered to its bullying and harassment  procedure. The Worker was at all times afforded all benefits of fair procedures and opportunities to have his complaint  heard in line with the Company’s established policy up to and including appeal stage.

The Employer cited   Euro Car Parts Ireland Limited v A Worker (LCR22092), where the Court decided that “In relation to the process followed and the report issued, the Worker could not point to any failure by the Company to follow the Company procedures, rather his issue appears to be that he disagrees with the findings of the Investigator. The Court finds that the Worker’s complaint was investigated in a fair manner and on that basis the appeal must fail”.

The Employer further cited the case of  Cash in Transit Driver v Security Transport Company (ADJ-00025311), where  it was deemed that that fair procedures were adhered to in a disciplinary situation.

The Employer argued that the incidents outlined did not meet the definition of workplace bullying as outlined in Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2021 and there was no evidence of actual bullying and harassment.

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

My role here is not to re-investigate bullying and harassment complaints but instead to look into the procedures that the Employer utilised and determine  as to whether they met the standard of fairness and impartiality required of such investigations.  The Employer cited Euro Car Parts Ireland Limited  where the Court says the worker could not point to any failure of the Company’s procedures but “… rather his issue appears to be that he disagrees with the findings of the Investigator. The worker is plainly dissatisfied with the outcome, but he also raised important procedural issues. He contends that  the experiences of his colleague not been  taken into account as well as the contention that the designated  appeals person was not sufficiently independent, in a relatively large organisation. Fundamentally, and a crucial aspect of this case, is that the Employer acknowledged that  the person complained about, Ms. A. was not interviewed during the formal investigation.

 The Employer referred to the  Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2021. Paragraph 4.2.2 of the Code provides:

“The investigator should meet with the complainant, the person complained about, and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts.”

The Employer accepted that Ms. A was not interviewed but outlined the difficulty of investigating a client’s employee who was not directly employed by the Employer. There is no doubt that this poses a difficulty, but I note that the Employer spoke with Ms. A during the informal process and received what were perceived as assurances. The Employer has a duty of care towards its staff and not adhering to the fundamental principle of interviewing the other side, as outlined at para. 4.2.2. of the Code of Practice, was a fundamental flaw in the Employer’s procedures.

The Employer further argued that the behaviour alleged by the Worker did not fall within the definition of bullying as defined in the Code. I would disagree. Firstly, and without going into the substantive details of the complaints, I find that the behaviour alleged, falls within the broad scope as identified at para. 2.3 of the Code.

Having considered the submissions of both parties, and for the reasons outlined above,  I uphold the claim of the Employee and find that his bullying complaint was not properly investigated by the Employer.  

Bullying, Code of Practice, Flawed Procedures.