Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

Reddy Charlton LLP

 Self-represented/Internal

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-00047107-001

10/11/2021

Adjudication Officer’s note:

Insofar as it is possible, I have removed references which identify the nature of the Complainant’s work and the nature of the Employer, as industrial relations hearings are to be conducted “otherwise than in public.”

I have, therefore, chosen to identify the person appointed to conduct the appeal review (Mr. X.) as an “administrative worker, in an adjacent work setting, not subject to the same statutory and regulatory framework as the Worker.”

This case involves the application of an investigation and disciplinary procedure in the Respondent Employer organisation, an organisation which is subject to a statutory and regulatory framework; and whether a departure from the applicable dignity at work policy (‘the Policy’) constitutes a breach of the Worker’s terms of employment. The Worker’s position is that it does. First, he is advancing the argument that the Respondent Employer organisation cannot abrogate its decision-making power as set out under the applicable procedure and to do so is a breach of his employment rights, as well as his right to natural justice and fair procedures. In this instance, the Employer appointed Mr. X., an administrative worker of comparable seniority, in an adjacent work setting, not subject to the same statutory and regulatory framework as the Worker, to conduct an appeal process, instead of a person of specified rank, who is a member of the Respondent Employer organisation, as identified within the policy.

The Worker further argues that the manner in which the process was conducted, by the person appointed (who he says cannot be appointed due to the fact that person is not a member of the Respondent organisation and therefore not subject to the same statutory and regulatory framework) also breaches his employment rights and his right to natural justice and fair procedures. He also submits that he was not informed that Mr. X. had been appointed, nor was he informed when the appeal was sent to an external expert (in this instance, a barrister) for ‘audit’ under step 1 of the (two-step appeal) procedure, and the Employer has acknowledged that both these failures to inform did occur and says that it was due to “administrative error.” The Worker also submits that when the situation came to his attention, he attempted to raise a grievance and was then informed he could not do so, as the person appointed was not subject to the dispute resolution procedure since he is not a member of the Respondent Employer organisation, and therefore is not subject to the same statutory and regulatory framework as the Worker.

The Employer denies the Worker’s claims. The Employer is advancing the argument that the person who was appointed is of an appropriate level of seniority, which is comparable to the identified rank/level required as set out in the regulations but at the civil grade. Secondly, the Employer argues that the Worker has suffered no detriment. Thirdly, the Employer argues that it took internal legal advice which supported the approach it adopted. Fourthly, the Employer argues that the Worker would not have been able to raise a grievance against someone of the same rank who was a member of the Respondent Employer organisation, (had such a person been appointed), as the top three ranks of the organisation are not subject to the dispute resolution procedures, in any case. Finally, the Employer argues that the WRC cannot substitute its judgment for an internal decision and has no jurisdiction to do so, and as such, it is not sure what recommendation the Worker is seeking or that the WRC could make. It suggests that a High Court judicial review is the only option, and the appropriate option open to the Worker.

Background:

The Worker joined the Employer, which is subject to a statutory and regulatory framework in 1982 and was promoted in 1992 and worked in a number of locations, as assigned. In 2022, the Worker, retired from the Employer having reached the compulsory age for retirement, having attained 40 years of service. It is submitted that prior to the complaint, the subject matter of this hearing, the Worker had an unblemished record of service.

In 2019, an allegation of bullying and harassment was made by a colleague who was at the same rank as the Worker, against the Worker and three other workers of higher rank, under the relevant Dignity at Work Policy (‘the Policy’) applicable in the Employer’s workplace.

It is submitted that the allegation against the Worker could have been investigated by a person one rank above him. However, it was investigated by someone four ranks above him.

The allegations made in 2019 pertained to 2017.

The original investigator concluded that the allegations did not meet the criteria of bullying and harassment under ‘the Policy’ and that on the balance of probabilities, the allegations that the colleague who made the allegations was bullied and harassed based on the evidence provided was not upheld. 

This decision was appealed by the colleague who made the complaints. The Worker was informed of this in January 2021. The Worker received no further correspondence, detail or information in respect of this appeal.

Thereafter on 5 July 2021, the Worker received a letter from Mr. X. that one of the allegations under appeal had been upheld further to an audit by an independent barrister.

The Worker submits that he was completely unaware of the basis of the appeal submitted by his colleague or that Mr. X. was undertaking this appeal.

He submits that he was unaware that the barrister had been instructed to carry out an audit of the original review or how the appeal was being dealt with by the Employer. The Worker submits that he was ‘completely in the dark’ and the next correspondence he received upheld allegations against him.  

The Worker submits that Mr. X.’s review of the original investigation is fundamentally flawed in a number of respects, which are set out below.

It is submitted that to allow Mr. X.’s report to stand constitutes a miscarriage of justice, in circumstances where the Worker was entering the last phase of a hitherto exemplary career.

The Worker’s Solicitor wrote to the administrative staff member (Mr. X) on 7 and 20 July 2021 (copies of which were submitted) seeking clarification on a number of matters, including:

1.       His own appointment

2.       The findings of the barrister and jurisdiction underpinning it

3.       Legal errors

4.       Delay

The Worker sought to lodge a grievance with his superiors in relation to Mr. X.’s report. There was an exchange of correspondence and ultimately, the Worker was informed that he could not make a grievance complaint as the person who had carried out the review was not a member of the same statutorily regulated organisation of which the Worker is a member, but rather was a senior administrative staff member in an adjacent setting who is not subject to the same statutory and regulatory framework as the Worker, and that, the Worker was precluded from raising a grievance.  The Worker submits that had the review been conducted by a person subject to the same statutory and regulatory framework as him (up to a particular level of seniority, but not beyond it), the Worker would have been able to raise a grievance.

As a consequence of the findings of the appeal process, disciplinary proceedings were initiated against the Worker pursuant to the applicable disciplinary regulations governing the Worker’s employment.

This process was not completed as the Worker had no choice but to retire having reached the date of compulsory retirement.

Legal Submissions

The Worker, in common with every other person in Ireland, has a fundamental right to fair procedures under Article 40 of the Constitution. This right extends to ‘the Policy’ employment processes and the importance of following fair procedures should not be undermined by those appointed to carry out investigations and reviews pursuant to ‘the Policy’.

Specifically, it is argued that the Employer failed to correctly follow the appeal procedure within ‘the Policy’. The procedures in this policy are part of the terms of the Worker’s terms of employment and as such are binding not only on the Worker but the Employer (the Worker’s employer).

An important aspect of fair procedures is that the process employed is open and transparent. In practical terms, this means that the Worker must be:-

                                                               i.      Furnished with details of all allegations;  

                                                             ii.      Allowed the opportunity to rebut each and every allegation;  

                                                           iii.      Furnished with all reports and ancillary documentation relevant to the investigation and review; and  

                                                           iv.      Due consideration should be given to allegations of a historical nature.

It is submitted that the report of Mr. X. is fundamentally flawed for the reasons set out below:-

-          Appeal: Information

Primarily, the Worker was not given a complete copy of the initial investigation carried out by the initial investigator prior to the decision on the appeal. The Worker only had the references as provided to him by a person identified in ‘the Policy’ as the local [role of a specified rank – four ranks above the Worker].

The Worker at no stage prior to Mr. X’s decision was given his colleague’s grounds of appeal and consequently was deprived of the opportunity to make any submission or comment on her appeal.  

-          Appeal: Appointment

Section 8.12 of ‘the Policy’ states that “Where either party is not satisfied with the outcome of the formal investigation they may appeal within 42 days to have the decision reviewed by their local [person of a specified rank – four ranks above the Worker] who will be the final arbiter within the [The Employer organisation].”

Mr. X. is not a member of the Employer organisation but a senior administrative worker, working in an adjacent setting not subject to the same statutory and regulatory framework as the Worker. This is common case between the parties and it follows therefore that he is not the designated person as set out in s. 8.12 of ‘the Policy.’  

This fact was confirmed to the Worker when he sought to bring a grievance against Mr. X. for the manner in which the Appeal had been handled.  He was informed by email on 19 May 2022 that “[The role Mr. X. holds] is not a member of [the Employer organisation] and therefore is not subject to the [the relevant applicable dispute resolution procedures to which the Worker is subject]. Even if he were, his grade is equivalent to [a rank five ranks above the Worker] as stated above, [the relevant dispute resolution procedures to which the Worker is subject] does not apply to the top three ranks in the [Employer] organisation.”  

This being the case, Mr. X. had no jurisdiction to conduct a review of the findings of the person who conducted the initial investigation, and act as final arbiter.

Further, it is stated in an email from Mr. X’s office of 22 February 2021 to the HR Office, that ‘[Mr. X.] has respectfully enquired as to if you are in a position to advise what actions he is expected to take on this file at this time and going forward.’ It is submitted that it is evident from this email that Mr. X., not being a member of the Employer organisation, had no familiarity with ‘the Policy’ and did not know how to undertake a review process which was completely alien to him.

Accordingly, it is submitted that Mr. X. should not have been assigned decision-maker in relation to an Appeal for which he had no jurisdiction but was, it is submitted, clearly outside his area of competence.

-          Appeal: Notification  

The Worker was completely unaware that Mr. X. had been appointed to carry out his appeal, or that Mr. X. had decided to appoint a barrister to carry out what is described in ‘the Policy’ as an audit. As a consequence, prior to Mr. X.’s making a decision, the Worker was deprived of the opportunity to take issue with the appointment on jurisdictional grounds and the process he adopted following the flawed appointment.

Following the decision, the Worker was deprived of the opportunity of lodging a grievance against Mr. X. because he was not a member of the Employer organisation. As outlined below, this decision was based on findings made by the independent barrister who conducted the audit, who also for the avoidance of doubt is not a member of the Employer organisation.  

Section 8.12 states:

“On receipt of a request for an appeal the [person of a specified rank – four ranks above the Worker] shall notify both parties that an appeal is being conducted.”

By letter dated 12 March 2021 from Mr. X’s office to the independent barrister, it says “[The colleague of the Worker who made the complaint] has confirmed that she has no issue with you conducting the appeal on her behalf.”  This suggests that the colleague of the Worker who made the complaint has been given the opportunity to comment upon the independent barrister’s appointment, when the Worker was unaware that even Mr X. had been appointed. It is submitted that there was a clear imbalance which put the Worker at a disadvantage.

By letter dated 20 July 2021, the Worker’s Solicitor, Reddy Charlton wrote to Mr. X. (A copy of the Correspondence  was submitted).

At paragraph 1.3 it sought confirmation “Please explain why our client was not advised as to your appointment and why you have not corresponded with our client prior to notifying him of the findings made in relation to the appeal.” 

In a response dated 4 October 2021 (A copy of the Correspondence was submitted), “Regarding point 1.3 I wish to advise that due to an administrative error your client [the Worker] was not informed of Mr. [X.]’s role as appeal reviewer.”Similarly, in this letter it noted that: “In response to 2.4 [the independent barrister] was engaged as per 2.1 above and said notification of same to your client was not provided as per 1.3 above.”  Thus, it has been accepted by the Employer that it did not comply with its own Policy in this regard.  Whether this was an ‘administrative error’ or not is irrelevant. The impact upon the Worker was that he was unaware of the Appeal process which was being undertaken.

Specifically, he was denied the opportunity to take issue with the Mr. X.’s appointment and the process he adopted to carry out this flawed role. Ultimately, he was denied the opportunity to lodge a grievance against Mr. X. in relation to his decision because Mr. X. was not a member of the Employer organisation.  

Section 8.12 further goes on to say:

“The complainant and the person complained of should be informed in writing of the findings of the appeal or review of the case within 30 days of the notification being received.

An extension to this time limit is acceptable only in cases where there is a justifiable reason and both the complainant and the person complained of have indicated that they have no objections to the extension. A written record should be maintained outlining any reasons for the delay in the time limits.”

The Worker was informed of the appeal against him on 26 January 2021.  On 5 July 2021 the Worker was informed of the decision against him.  This is far in excess of the 30 day limit.  

Further, an extension to the 30 day time limit can only be granted where:

-          justifiable reasons are provided; AND

-          the person complained of has indicated that they have no objection to the extension.

There is no justifiable reason given for this delay. Furthermore, his consent was not obtained for an extension to warrant Mr X’s investigation.

Appeal: Independent Review and Flaws

Chapter 8.12 provides that the independent expert may be engaged by the [specified person under ‘the Policy’ – of four ranks above the Worker]. Mr. X., engaged a barrister to carry out an audit of the investigation.  

It is accepted that a barrister could be appointed under Section 8.12 of ‘the Policy’.  

In the Worker’s solicitor’s letter of 20 July 2021 referred to above), at paragraph 2.3 it noted “The decision which you have purportedly made is based on a finding made by [the barrister]. Please identify the source from which [the barrister] derives her authority/jurisdiction to make any finding.”

In response to that, (letter referred to above), Mr. X. said “Regarding point 2.3 please note [the barrister], did not make findings in this case.” 

This audit was disclosed as part of a subject access request. It is evident through a comparison of these two documents that Mr. X. has simply copied and pasted the wording of [the barrister].  That is not what ‘the Policy’ provides for.  Ultimately, the decision of Mr. X. should have been his own and not that of [the barrister].  (A copy of the barrister’s document was submitted; and a copy of Mr. X.’s document was submitted).

As such, it is quite evident that it was in fact [the barrister] who ostensibly made the findings of fact as Mr. X. did not independently consider any issue, and rather than considering the points of the audit from his own perspective, he merely took on the views of [the barrister].  This is patently not what ‘the Policy’ intends as it outlines in Section 8.12 that “In making the final determination the [person of specified rank – four ranks above the Worker] will consider the views of the expert.”  In this case he did not consider them, he wholly copied them.

The Worker’s Solicitors raised the issue of an error of law in the letter dated 20 July 2021. The Worker’s Solicitor outlined the following:“In your letter, you state that the decision of the [person who conducted the initial investigation] was based on an ‘error of law’.  If that was the case, please explain why the finding of the Investigating Officer was not set aside and a reinvestigation directed. Please explain how [the barrister] arrived at the conclusion that “the [person who conducted the initial investigation] has found that the conversation did take place as described”.  With respect, no such finding was made by the [person who conducted the initial investigation]. In her Outcome Letter she states that “coupled with the evidence of [a witness (1)] and to a lesser degree the evidence of [a different witness (2)] would tend to lead one to conclude that a conversation with negative comments about [the colleague of the Worker who make the complaint] may have taken place on the date in question.”  It is clear from this excerpt that the [person who conducted the initial investigation] did not find that the alleged conversation as described by [a witness (1)] in fact took place. Her finding was that there was a conversation with negative comments which is completely different to [the barrister’s] finding that the conversation as described by [a witness (1)] took place.”

In response to this, in the letter dated 4 October 2021, Mr. X. responded saying, inter alia:

“The policy allows an appeal by way of review. The policy refers to ‘making the final determination’.  Therefore, the decision maker is entitled to make a determination of the matter and is not obliged to set the original investigation aside.”

He then goes on to say (referring to himself in the third party) “In relation to other matters I would refer you to the decision of Mr. [X.], in particular his reference to the findings of [the person who conducted the initial investigation] on the balance of probabilities.  Mr. [X.] is entitled to come to the conclusion that the offensive phrase used is harassment on the gender ground in light of the decisions of the Labour Court.”

In light of the fact that Mr. X. simply copied [the barrister]’s decision, it is clearly disingenuous for Mr. X. to suggest that this was in any way his decision. He could not clearly explain the reasoning because he did not actually make the decision at all.  

Impact on Worker 

It is submitted that the findings by Mr. X. portray the Worker in the most negative sense possible in the eyes of his superiors. A person reading his report, who did not know the true character and personality of the Worker, would form the view that he is insensitive, overbearing, controlling and unsupportive of the people under his supervision. 

It is hard to describe in words the devastating impact which the conclusions reached in respect of the upheld allegation, has had and continue to have on the Worker, his wife and family.

Conclusion

For the reasons outlined in this submission, we respectfully request the Adjudicator to find for the Worker and to make an appropriate recommendation.

Background

1.       This complaint centres on a Bullying and Harassment complaint taken by a work colleague of the Worker. The colleague made a complaint against a number against a number of her colleagues including the Worker under the applicable Dignity at Work Policy (‘the Policy’) in October 2019.

2.       An internal person (four ranks above the Worker) was appointed to investigate the complaint on the 17th of December 2019 and commenced a lengthy investigation.

3.       The Investigation Report was completed and received by the relevant person for the region, on the 30th of November 2020. The investigation did not uphold the allegations of bullying and harassment made against the Worker. Under ‘the Policy’, either party has 42 days in which to submit an appeal.

4.       All parties were informed and received the findings of the investigation on the 11th of December 2020 by email and hard copy.

5.       Following the notification of the findings of the investigation, the colleague who had made the complaint submitted an appeal against the findings of the investigation on the 22nd of January 2021.

6.       All relevant parties to the complaint were then informed, by the relevant person for the region, that an appeal was being taken by the colleague who had made the complaint on the 26th of January 2021.

7.       On receipt of the Appeal, a request was then made to the person in HR dealing with the matter to appoint a person of appropriate seniority to deal with the appeal. The section which is policy holder of the anti-bullying policy was also notified.

8.       The determining factor in terms of the rank of the person appointed to hear the appeal was the rank of the person who had been appointed to hear the initial complaint - ‘the Policy’ requires that an appeal is dealt with by a person (subject to the same statutory and regulatory framework) of higher rank. There are two people in the Employer organisation holding the rank identified to conduct the appeal.  

9.       At the time of appointment, one of those people had already had involvement in the matter and the remaining person was due to retire. As a result, it was agreed by HR that the most appropriate person to deal with the appeal was the person appointed to deal with the matter – this was a person of an equivalent seniority and rank to the one identified as being required by ‘the Policy’ (and who is not subject to the same statutory and regulatory framework).

10.   The HR Office appointed Mr. X. to review the Appeal.

11.   Legal advice in regard to the appointment was provided by the internal unit on request. (Copy of advice submitted.)

12.   Mr. X. appointed an external expert [a barrister] to audit the investigation and took the findings of the external expert into consideration when making his decision.

13.   Mr. X. issued a decision on the 5th of July 2021 overturning one finding in the original investigation in regard to the Worker and held that the Worker had harassed the colleague who made the complaint. This resulted in a recommendation that consideration be given to commencing an investigation pursuant to the provisions of the applicable disciplinary regulations.

14.   As a result, an investigation under the applicable disciplinary regulations was commenced. The Worker objected to the investigator appointed and as a result a different investigator was subsequently appointed. During the course of interviewing the colleague who made the complaint, other complaints were made and as a result a separate disciplinary investigation was instigated with a different investigator. However, due to the retirement of the Worker on the 21st June 2022 while the investigations were ongoing, the disciplinary investigations ceased and no disciplinary action was ever taken against the Worker. [Adjudicator’s note: For clarity, this is because the Worker was no longer subject to the applicable disciplinary regulations upon mandatory retirement.]

15.   Subsequently, the Worker sought to take a grievance against Mr. X. under the internal Disputes Resolution Procedure. However, he was advised that the applicable dispute resolution procedure does not apply to the top three ranks in the Employer organisation, nor to people working in an adjacent administrative setting [which Mr. X. was].

Legal Submission

The Worker was at all times afforded his fundamental rights to due process and fair procedures in the course of the investigation into the original complaint and in regard to the subsequent appeal.

He was furnished with the allegations against him. He was offered an opportunity to rebut those allegations. He was provided with the findings of the investigation in regard to the allegations against him. He was informed when an appeal was received. He was informed of the outcome of the appeal.

The applicable Dignity at Work policy (‘the Policy’):

‘The Policy’ is the internal anti-bullying, harassment and sexual harassment policy and complies fully with the relevant Employment Equality Acts 1998 to 2004, the Safety, Health and Welfare at Work Acts 1989 and 2005 and the 2002 Code of Practice for Addressing Bullying in the Workplace (S.I. No. 17 2002). Therefore, procedures under this policy are fully compliant.

‘The Policy’ runs to 44 pages and is a comprehensive document setting out the definitions of bullying and harassment and sexual harassment, the relevant legislation as well as the roles and responsibilities of all persons in the workplace. It also clearly sets out the procedures to be followed when making and investigating complaints in the workplace. It allows for an informal process as well as a formal one. It also allows for extensions of time and how investigations are to be conducted. It allows for a party to a complaint to appeal a decision and it sets out actions that can be taken where a complaint is or is not upheld. It also provides for mediation.

‘The Policy’ is clear on how the complaint and appeal procedures are to be applied. 8.4 Formal Process provides (page 28):

·       ‘The [specified role - three ranks above the Worker] will select a suitable investigator, who should be of higher rank than the complainant and person complained of but not lower than [specified role – one rank above the Worker]’.

·       ‘The investigator will report their findings within 28 days of the complaint being received at the [name redacted] office’

·       ‘On receipt of a formal complaint the [specified role - three ranks above the Worker] will inform the [specified role – four ranks above the Worker], HR and their local [specified role – four ranks above the Worker].’

However, in the event that the person complained of is [specified role - three ranks above the Worker], as in this case, ‘the Policy’ provides at 8.4 pg 29 that;

·       ‘…the formal complaint will be forwarded to the local [specified role – four ranks above the Worker] who will appoint a suitable member [of the Employer organisation] not below the rank of [specified role – four ranks above the Worker] to investigate the complaint.’

The [specified role – four ranks above the Worker] over HR has been replaced by the Executive Director of HR (as per an internal directive dating from 2020 – copy of the document submitted). The complaint was also against a person of [specified role - three ranks above the Worker], this explains why the original investigator appointed was at [specified role – four ranks above the Worker]. This is also provided for in ‘the Policy’.

Once the investigation is complete, the file is sent to the [specified role – three ranks above the Worker], or as in this case to the local [specified role – four ranks above the Worker] to review it to ensure that the investigation complied with the procedures. The [specified role – four ranks above the Worker] should then advise the parties in writing of the outcome. ‘The Policy’ provides at 8.9 (pg 34) that;

·       ‘On receipt of the investigation file the [specified role – three ranks above the Worker] (or specified role – four ranks above the Worker) shall satisfy themselves that all appropriate steps have been taken and a thorough and impartial investigation has been carried out. Both parties should be advised in writing of the outcome and the further action that will be taken.’

These provisions were fully complied with and all parties to the original complaint were informed of the findings of the investigation of the person holding the specified role four ranks above the Worker, by the relevant, local, specified person four ranks above the Worker by email and letter dated 11th of December 2020. (Copy of Correspondence submitted.)

‘The Policy’ provides for appeals of decisions at section 8.12 and states:

·       ‘Where either party is not satisfied with the outcome of the formal investigation, they may appeal within 42 days to have the decision reviewed by their local [specified role – four ranks above the Worker] who will be the final arbiter within [the Respondent Employer].’

·       ‘On receipt of a request for an appeal, the [specified role – four ranks above the Worker] shall notify both parties that an appeal is being conducted.’

In this case an appeal was received within 42 days on the 22nd of January 2021 and the Worker was informed that an appeal had been lodged and was advised that the appointment of a member  [of the Employer organisation holding a rank five ranks above the Worker] was being sought to conduct a review of the findings in a letter dated the 26th of January 2021 from the local [specified role – four ranks above the Worker]. (Copy of Correspondence submitted.)

This complied fully with ‘the Policy’ as stated above and there is no requirement to provide the appeal document to other parties under ‘the Policy’, given that the appeal is a review of the investigation and not a new investigation requiring new submissions from parties.

Neither is there any provision in ‘the Policy’ to receive further submissions from parties not appealing the decision of the original investigation.

The Worker was notified in this correspondence that [a member of the Respondent Employer five ranks above the Worker] was being sought to carry out the review. This is because the investigating officer was [four ranks above the Worker] and could only be reviewed by a person of higher rank.

As stated above, there are only two [people holding a rank five ranks above the Worker, in the Respondent organisation]. On this occasion, one had already had some involvement in the matter and the other was about to retire. In the circumstances, where neither could be appointed, it was decided by the HR Office to appoint (Mr. X.). Mr. X. has the equivalent status of a [specified role –five ranks above the Worker] in the civil grade.

The legal advice from the Legal Section of the Respondent Employer sets out clearly the rationale for appointing Mr. X. to review the appeal in the current situation. (Copy of Advices submitted). It notes that;

‘However, at the time [specified person – (now) five ranks above the Worker] was the original appointing [person] under [‘the Policy’] and, therefore, it was not appropriate she would deal with an appeal. [Specified person – also five ranks above the Worker]’s retirement was imminent and the newly appointed [specified person – five ranks above the Worker] was not due to commence duties for some months. As a result, to be fair to the parties and so as not to delay matters, [specified role - administrative worker, in an adjacent work setting, not subject to the same statutory and regulatory framework as the Worker (Mr. X.)] was appointed to review the appeal being of a similar grade to a [specified role – five ranks above the Worker].’

Furthermore, while this is not expressly provided for in ‘the Policy’, the legal advice is that this was both appropriate and consistent with ‘the Policy’ in order to put in measures that achieve the aim and intent of ‘the Policy’. As stated:

‘In this case, allowing an appeal to be reviewed expeditiously by another senior member [of the Employer organisation] above the rank of the original decision maker is both appropriate and consistent in the circumstances.’

Finally, the legal advisor in their advice, cites the case of Fanning v The Commissioner of An Garda Síochána [2011] IEHC 58, in which Hedigan J. stated that;

 ‘“This document is clearly a guide and not a piece of disciplinary legislation.”   

In regard to the appointment of an external expert to carry out an audit of the original investigation, this is provided for in ‘the Policy’ at section 8.12, pg 36;

·       ‘the [specified role – four ranks above the Worker] may review the case themselves and make a final determination on the matter.’

·       ‘Alternatively, the [specified role – four ranks above the Worker] may engage an independent expert to carry out an audit of the investigation. The expert may be a member of the legal profession or a former Rights Commissioner with extensive experience in the areas of employment law.’

·       ‘In making the final determination the [specified role – four ranks above the Worker] will consider the views of the expert.’

In this regard, Mr. X. was in full compliance with ‘the Policy’ in appointing an external expert to audit the investigation, Secondly, the expert appointed was a barrister, thus complying with the requirement that the external expert be a member of the legal profession or a former Rights Commissioner with extensive experience in the areas of employment law.

There is no requirement in ‘the Policy’ to engage with any party in the course of an appeal other than informing parties that an appeal has been received. An appeal being a review and not a re-investigation of the matter, further submissions are not required to be provided by any party to the original investigation.

On the conclusion of the audit and review, the parties should be informed in writing of the findings of the appeal or review of the case within 30 days of the notification (section 8.12, pg 36). The Worker was informed of the findings and decision of Mr. X. in writing on the 5th of July 2021. It is accepted that the decision was provided outside the 30 days. However, in every other way it complied fully with ‘the Policy’. (Copy of Correspondence provided.)

‘The Policy’ states that the [specified role – four ranks above the Worker] will be the final arbiter within the [Respondent Employer]. In this case, Mr. X. took the place of the [specified role – four ranks above the Worker] for the reasons outlined above. Mr. X. gave the final decision and not the external expert. Mr. X. states that he ‘is in agreement with [the barrister/external expert] in this matter’ in his findings. Mr. X. was perfectly entitled to rely on the expertise of the external expert when coming to his conclusions and making a decision as final arbiter.

A. Disputes Resolution Procedure

The Worker has stated that following the issuing of the Appeal findings by Mr. X., he wished to take a grievance against Mr. X. under the Disputes Resolution Procedure (DRP), which is the internal policy for members [of the Employer organisation] to make a grievance against another member [of the Employer organisation] in regard to a number of matters. (Copy of Procedure submitted.)

The Worker was informed by email dated 23rd May 2022 (Copy of Correspondence submitted) that it was not possible to use the dispute resolution procedure to make such a complaint as Mr. X. was not subject to the procedure as it applied only to members of the [Respondent Employer]. Furthermore, the Worker was informed that ‘the Policy’ also did not apply to senior ranks of [the Respondent Employer including, [specified role – four ranks above the Worker], [specified role – five ranks above the Worker], [specified role – six ranks above the Worker]. So, even if a person holding the [specified role – five ranks above the Worker] had dealt with the Appeal, a grievance could also not have been taken against them.

In these circumstances, since the Worker was in receipt of legal advice throughout, it would have been open to him to take a judicial review where he was dissatisfied with the findings or the process of the appeal. A judicial review is the appropriate legal route to challenge an administrative decision, particularly where no alternative option is available.

Disciplinary Action

No disciplinary action was ever taken against the Worker and no record exists on his personnel file in this regard.

The status of a finding against an employee complained of under the ‘the Policy’ is not a disciplinary finding in and of itself. A finding against a member [of the Employer organisation] under the ‘the Policy’ will either have to be dealt with under the applicable disciplinary regulations or become the subject of a criminal investigation if considered serious enough, or if not, the [specified role – three ranks above the Worker] will decide whatever further action is warranted. This may include advice, admonition or warning as necessary and monitoring, the provision of training may also be offered as stated at Section 8.10 of ‘the Policy’. This is further conveyed by the wording used by Mr. X. in his findings that …’I have also recommended that given the seriousness of this finding, consideration should be given to commencing an investigation pursuant to the provisions of the [applicable disciplinary regulations], in relation to the offending [Worker].’ (Excerpt from the final page of Mr. X.’s findings, as submitted).

Furthermore, there is no reference in ‘the Policy’ in regard to how a finding against a member [of the Employer organisation] is to be recorded, where it is to be recorded and how long it is to be recorded for other than a general requirement that ‘records should be kept of all complaints and how they were resolved’. I would argue that until such time as either a disciplinary sanction or criminal sanction is issued, the Worker has not had any black mark made against them.

In the circumstances, a disciplinary investigation was instigated on foot of the findings of the Appeal. A person [two ranks above the Worker] was originally appointed to carry out the investigation but was replaced by another person [also two ranks above the Worker], when the Claimant objected to the appointment of the original person. However, the second person appointed notified the [specified person, three ranks above the Worker] who had appointed him that due to the Worker’s retirement on the 21st June 2022, the matter could not be advanced any further. (Copy of Correspondence submitted.)

A separate investigation was begun on foot of allegations made by the appellant in the course of her interview under the applicable disciplinary regulations with [specified person – two ranks above the Worker] that were not in the original complaint. A different [specified person – two ranks above the Worker] was appointed to investigate these complaints which were distinct and separate from the appeal.

However, this (second) [specified person – two ranks above the Worker] also later informed the [specified person – three ranks above the Worker] that the Worker retired on the 21st of June 2022 and could not continue with the investigation. (Copy of Correspondence submitted)

During the course of these investigations, the Worker retired and so the investigations ceased. The [specified person – three ranks above the Worker] who appointed [specified person – two ranks above the Worker] noted in an email that the investigation ceased. (Copy of Correspondence submitted) The Office of Internal Affairs confirmed in an email dated 23rd June 2022 that the investigation file was closed. (Copy of Correspondence submitted)

Conclusion

It is denied that the Worker was denied his right to fair procedures and due process under ‘the Policy’. ‘The Policy’ complies fully with legislation and the relevant anti-bullying and harassment Code.

Mr. X. is not precluded from dealing with such matters and the legal advice from the [Respondent Employer’s] Legal Section confirms this. Therefore, the process was not flawed as a result of a decision being given by Mr. X. in the matter.

All information required to be provided to the Worker under ‘the Policy’ was complied with. There is no requirement under ‘the Policy’ to seek or accept further submissions at Appeal stage other than the grounds of appeal by the Appellant.

It is denied that the Appeal decision was made by any person other than Mr. X. appointed to make the decision and was certainly not made by the external expert as claimed by the Worker.

The Worker was correctly advised that a grievance complaint could not be taken under the Disputes Resolution Procedure against Mr. X.. It was at all times open to the Worker to take a judicial review in the alternative and it is further noted that the Worker was in possession of legal advice.

The conclusion by Mr. X. was that the [person who conducted the initial investigation] incorrectly applied the definition of harassment and on a correct application there was a finding that on the balance of probabilities, the actions of the Worker amounted to harassment on the gender ground.

No disciplinary decision/action was ever made against the Worker and no action of any other description was ever taken against the Worker on foot of the Appeal finding against him.

The Worker retired without any disciplinary finding or record against him. No other action was taken against the Worker on his retirement. Therefore, it is denied that there was any negative impact against the Worker. The Worker received a reference on retirement that would not have had any reference to the finding against him under ‘the Policy’.

While it is unclear what the Worker wants the Adjudication Officer to do on foot of his complaint other than to make ‘an appropriate recommendation’. It should be noted that the WRC does not have jurisdiction to vacate or overturn an internal decision. The WRC has stated many times that it does not interfere with internal decisions of employers as it cannot put itself in the position of the employer. A judicial review would be the only appropriate legal route by which to have such an administrative decision vacated or overturned.

Therefore, in the circumstances, it is submitted that the Adjudicator not make any recommendation in favour of the Worker as there has been no detriment to the Worker and no disciplinary action or sanction or any other sanction has been recorded against him resulting from the findings of Mr. X. ’s report.

In conducting my investigation, I have taken into account all relevant submissions, both written and oral, presented to me by the parties. Comprehensive written submissions were made by both sides and presented by their representatives at the hearing. The Worker also spoke on his own behalf, at his request, at the hearing.

Addressing the issue of jurisdiction first: The definition of a trade dispute is set out in s. 3 of the Industrial Relations Act 1946, as follows:-“trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person;

This case correctly comes within the definition of a trade dispute as it is connected with the terms of the employment of the Worker, i.e. the application of the relevant dignity at work policy, in circumstances where an allegation of bullying and harassment had been made against the Worker.

The Worker was mandatorily subject to a statutory framework and a regulatory framework thereunder, which governed both his duties and his rights as a Worker, working for the Respondent Employer, i.e. it governs his terms of employment, including discipline. Additionally, he is entitled, as is every Worker to the benefits of fair procedures and natural justice.

The trade dispute in this case pertains to his rights, as per his terms of employment, under that mandatory statutory and regulatory framework (and policies produced thereto), as a Worker, as against the Employer in the context of an allegation of bullying and harassment made against him by a colleague.

I conclude that the Employer is bound in its duty to the Worker to operate within the terms of that statutory and regulatory framework in the application of its investigatory and disciplinary processes, and to faithfully apply its own policies in relation to same, in addition to its broader duty to vindicate the Worker’s right to fair procedures and due process.

In this case, the initial complaint was investigated by a person four ranks above the Complainant (when one rank above would have been sufficient in order to fulfil the terms of ‘the Policy’). No finding against the Complainant was made at first instance.

That appointment at first instance had the effect of creating a situation for the Employer that when an appeal was subsequently lodged, it then had to appoint a person who was a further rank above again, in order to conduct the appeal, from a procedurally compliant perspective. There are two people of that rank in the Employer organisation and due to the prior involvement of one of those two people and the imminent retirement of the other, it proved difficult for the Employer to appoint someone appropriate, in a timely manner. The Worker is also entitled to an effective remedy without undue delay.

In ease of the Employer, the Worker then offered to consent to the appeal being heard by another person of the same rank as the one who heard the initial complaint (four ranks above him). That offer was declined for procedural reasons.

What the Employer then did was appoint someone of an appropriately senior rank in an adjacent administrative setting but who is not subject to the same statutory and regulatory framework as the Worker, nor the same dispute resolution process and who is not a member of the Employer organisation. It is precluded from doing so. To do so is a breach of the Worker’s terms of employment.

Furthermore, the Employer acknowledges that it failed to notify the Worker of both the purported appointment of Mr. X to conduct the appeal and of the referral by Mr. X. (in line with ‘the Policy’ to an independent expert, a barrister for review) due to “administrative error.”

Once the Worker became aware of what had occurred, he sought to raise a grievance in relation to a number of procedural issues both in relation to Mr. X.’s appointment and how the appeal was being conducted. However, he was informed that, as the administrative worker appointed was not subject to the same statutory and regulatory framework as he was, the Worker was precluded from raising a grievance in relation to him under the dispute resolution procedure applicable to the Worker. The Employer in its submissions has suggested that the correct course of action open to the Worker, at that juncture, was a High Court judicial review.

Had the Worker been notified of Mr. X’s proposed appointment, he could have objected and raised with his Employer the fatal procedural issue, in real time. The Employer is incorrect in its assertion that the High Court is the only remedy available to the Worker – while that may have been the case in the past, the WRC now also has jurisdiction with respect to trade disputes.

It is the Worker’s contention that the purported appointment was a fundamental flaw in the appeal process, in and of itself, for the reasons set out. It is the Worker’s further contention that the manner in which the appeal was conducted was fundamentally procedurally flawed, and that he was prevented from challenging that internally by way of the procedure laid down.

Having examined the submissions before me carefully, and the relevant mandatory statutory and regulatory framework, and the applicable policies and procedures, I conclude that the purported appointment is inconsistent with the terms of the Worker’s employment, which entitles him to have investigation and disciplinary procedures conducted by a person who is a member of the same Employer organisation as him and who is subject to the same statutory and regulatory framework as him, and where applicable subject to the same dispute resolution procedure as him. I conclude that the Employer is precluded from abrogating its decision-making function (i.e. the second step of the process) to a person/body outside its own statutory and regulatory structures.

It is noteworthy that internal legal advice was sought retrospectively in relation to the putative appointment. The Adjudication Officer, at the hearing, noting the retrospective nature of the legal advice, enquired as to whether any legal advice had been sought prior to the appointment and the Employer confirmed that it had not.

For clarity and completeness, the Worker’s Solicitor did not object to the referral to an independent expert/barrister to conduct an audit in line with ‘the Policy’ – step 1 of a two-step process. What is contested is the purported abrogation of the decision-making function (step 2 of a two-step process), which by statute and regulation is reserved solely to the Respondent Employer, and which is a term of the Worker’s employment (to which the Worker is both subject and entitled to be subject). Consistent with those statutory and regulatory frameworks, the Employer policies as set out, give reality to those requirements and constraints. It is the failure to comply with this which is challenged by the Worker.

I recommend that the report of the administrative worker in an adjacent work setting, not subject to the same statutory and regulatory framework as the Worker (Mr. X.) be expunged from the Worker’s record, as that person’s appointment to conduct the appeal process is not consistent with of the Worker’s terms of employment.

I also note that the acknowledged failure to notify the Worker of either Mr. X.’s appointment or the referral for independent external audit (step 1) both ‘due to administrative error’ is procedurally deficient, depriving the Worker of an opportunity to challenge the purported appointment.

I recommend that the Employer pay the Worker €5,000 compensation for the failings in how it has conducted this process.

I note that the issuing of a particular document (a certificate, confirming a retired employee’s service) which typically issues as a matter of course at the point of retirement, from the Employer organisation, is still outstanding in relation to this Worker, and without seeking to trample on the function of the person charged with the task of issuing that document (six ranks above the Worker), I specifically note that no impediment has been identified by the Employer to the issuing of that document. I further say, for clarity and completeness that the last procedurally correct interaction the Worker had with the Employer, in line with the requirements of the terms of his employment set out under the statutory and regulatory framework to which he was mandatorily subject, and entitled to be subject, as well as the policies set out thereto, and in line with the requirements of fair procedures and natural justice, prior to his mandatory retirement, resulted in no finding against the Worker. I recommend that the person charged with that function give consideration to the issuing of the document.

Industrial Relations; Bullying and Harassment; Dignity at Work; Abrogation of Decision-Making Power; Referral to independent expert; Two-step process; Substitution of person appointed to conduct appeal; Statutory and Regulatory Framework of Employer; Application of Policies;