Worker

Employer

Anonymised Parties

A Public Servant

A Public Body

Representatives

Appeared In Person. Colleagues In Support.

Sophie Crosbie , IBEC Regional Manager

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 - 00000242

28/04/2022

On 28 April 2022, the Worker referred the outcome of an Internal Investigation and Appeal of a Bullying complaint he had made in February 2021 to the WRC.

On July 6, 2022, the Employer communicated their agreement to participate in an Investigation under the Industrial Relations Act, 1969

The Worker has worked across the Civil and Public Service in his role as an Inspector since July 2006.

A Preliminary issue arose for me on whether the Worker could advance his dispute under the Industrial Relations Act, 1969 as the Worker had introduced himself as a Civil Servant?

On 16 February 2023, in advance of the first day of hearing, I wrote to the Parties and identified this Preliminary issue citing the associated legislation.

At the outset of the forthcoming hearing, I will be seeking a preliminary response from both parties on the definition of a worker on a jurisdictional point.

“worker”.

23.—(1) In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under)] a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include—

(a) a person who is employed by or under the State,

(b) a teacher in a secondary school,

(c) a teacher in a national school,

(ca) a teacher employed by an education and training board,]

(d) ……

(1A) For the purposes of subsection (1) and subject to subsections (1B), (1C) and (1D), the Industrial Relations Acts 1946 to 2019 and this Part shall apply to a member of the Garda Síochána.

As the Worker had sent in a large volume of loose, non-sequenced documents, I requested a written timeline of events behind the claim. I received this, which was promptly shared with the Employer.

The Employer lodged their submission pre -hearing, which prompted a request from the Worker to postpone the hearing.

 During this time pre -hearing, he also revealed a vulnerability surrounding securing documents he deemed necessary to his case, in addition to securing a summons for a broad range of witnesses.

I wrote to the Parties linking witnesses to the Employment Rights cases rather than the Industrial Relations case, but assured the parties that I would engage with them. I refused the Postponement.

On 24 February 2023, in cooperation with the Parties, I began case management on consent by opening the Industrial Relations case in private and assured the parties that they would be anonymised. I did this as the syntax of the three complaints lodged were identical and the Industrial Relations case came first in time.

On 15 June 2023, the Worker withdrew the Employment Rights cases from the WRC.

On engagement with the Parties, I learned that the Worker was not in fact a Civil Servant but was a Public Servant employed by the named body at the heading of this Recommendation.

The Worker helpfully provided a copy of the Vesting agreement on the changeover from January 1, 2007, which underpinned access to the then LRC and now WRC for the Workers grade.

All parties accepted this background to the case.

In this case, I have conducted my investigation, while exploring the potential for a Mediated settlement aimed at resolving the dispute.

Mc Donnacha v Minister for Education refers.

The Worker represented himself at hearing. The Employer was represented by IBEC.

The Worker in the case is a Public Servant and has worked in the Marine services since 2006.

He outlined that he had been repeatedly undermined discredited and bullied in respect of his contractual role. He submitted that this treatment followed a number of Protected disclosures and reports in 2017, which he had submitted to internal and external bodies in relation to a genuine workplace concern.

The Worker represented his own case and was accompanied to hearing on both occasions by two trusted colleagues.

Preliminary Issue on whether covered by the Industrial Relations Act, 1969

This issue was resolved in the workers favour and he has demonstrated that he has rightful access to the WRC. He is not a Civil servant, as first described.

Substantive Issue:

I listened carefully to the Workers description of his deep unhappiness in how he believes that he has been treated at work since he made reports of wrongdoing. In respecting the parameters of the IR Act, I must write to seek to protect the parties’ identities in anonymisation .

In summary, the  Worker attended the hearing at an impasse, where he described a high level of exclusion and thwarted attempts to allow him access to documentation across a myriad of bodies. A number of these matters before external bodies are still live and not before me .

Today, I am seeking to navigate the IR case alone.

He contended that the Investigation and subsequent appeal of same were contrary to the provisions of SI 674/2020 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work, Order, 2020.

He submitted that the outcome was unfair to him.

The Worker sought an Investigation and Recommendation in the case.

The Worker gave a chronology on a series of events which he had experienced in his workplace. He described a cumulative negative impact on himself personally as he had tried to do the right thing in bringing problems to the fore.

He presented as a lone figure and contended that the cumulative impact was now affecting his work performance as he could not move forward in his professional life. He expressed a bewilderment on how his actions which were based on good practice had hampered him.

He expressed a high level of criticism in respect of the composition of the investigation into complaints of bullying. He repeated a systemic belief that he had been denied fairness and that he had been held back through an unhelpful proximity within the group of 8 complained of and the subsequently appointed Investigators.

The Worker expressed a belief that he was finding work difficult when seeking to resolve historical matters .

Preliminary Issue on whether covered by the Industrial Relations Act, 1969

The Employer is a statutory Agency established by law in 2006. Staff are established public servants.

The Worker joined the employer by transfer from a Government Dept in 2007.

Substantive Issue:

The Employer gave a precise and succinct account of how in May 2017, the Employer had been alerted by an external body that confidential documents had been shared with them. As this conflicted with governing legislative provisions, the Garda Siochana were involved, who investigated but no action was taken.

The Employer from direct engagement with the worker learned that the disclosure had originated from him, and he subsequently sought the protection of the Protective Disclosure Legislation.

An external consultancy was commissioned and confirmed the protected disclosure. In March 2019, they commenced a review with the workers participation. A report issued with Recommendations in June 2021, which was shared with the worker.

In March 2021, the Worker raised a complaint of corporate bullying against the Employer. The process was overseen by the Audit and Risk Committee in line with Dignity at Work Policy.

A Procurement process concluded in the appointment of an Investigative Team from a high-level Law firm, which concluded without upholding any of the allegations.

The Worker appealed the outcome.

The Audit and risk Committee appointed another high-level Law firm to conduct the appeal which concluded in February 2022

“The investigation followed the correct procedures as contained in the policy and that investigation conclusion could be reasonably drawn from the evidence considered on the balance of probabilities “

The Worker then filed his complaint to the WRC on 28 April 2022.

The Employer stood over the investigation conducted by the public body. Ms Crosbie stressed the independent nature of the investigation.

Ms Crosbie submitted that it was not the function of the Adjudicator to form an opinion on whether the Employer was objectively correct in their conclusions, rather its role is to establish if the Employer acted fairly its dealings with the worker.

Euro Car Parts Ireland ltd v A Worker LCR 22092

The Employer contended that the Labour Court had not moved to disturb the process, or the report followed, but rather focussed on whether the employer in the case had followed procedure. The Court held that the worker disagreed with the findings but found that the complaint was investigated in a fair manner.

Ms Crosbie said the Court looks for procedural defects or lack of fairness rather than to disturb the findings to no end.

The Employer in the case has repeatedly requested that the worker work with them to seek to move forward in the case.

It was the Employers case that the Worker had not been wronged but had received positive feedback from the Board in recent times in addition to a shared vision that all could move forward in the case.

The Employer expressed a very strong belief that the worker was held in positive regard at his employment and the employment was keen to build on this in moving forward .

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

The definition of “trade dispute” is contained in s.3 of the 1946 Act:

Any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of employment, or with the conditions of employment, of any other person.

I am satisfied that the Worker has a valid trade dispute on the topic of the complaint made by him in February 2021 and concluded by a review on appeal in February 2022.

The Worker told the hearing that he could not move forward, and his performance appraisal system had captured this reality. He did not demonstrate this by extracts from that process and the employer expressed a certain doubt on that topic.

The Employer focussed on a present day  changed culture at the organisation, which was keen to engage with the worker in moving forward.

Considering the intensity and urgency contained in both parties’ presentations to hearing in February 2023, I suggested to the parties that they pause the communication process, which had been quite confrontational and instead pause to try a series of direct engagements to explore a way forward in the case, by  inviting the newly appointed Board to engage.

Both parties took some time, but readily agreed to this supportive process and parties reported a modicum of improvement.

I am grateful to both parties for their commitment in  prioritising this issue as respectfully as they did.

I met with the parties once more in this case on April 28, 2023. By then, the Employer had worked very hard at base to move forward collectively and was pleased with progress and a more respectful communication zone.

However, by then, I noted that the worker had begun to look once more in the rear-view mirror and to call on past obstacles and impediments, whilst equally acknowledging that 6 out of the 8 people ( subjects of his complaint ) complained of were now gone from the system. He struggled with the positive comments shared with him by the employer and visibly retreated from a planned shared way forward. His views on a climate of low trust were clear.

I began to canvas views on how a mutually agreeable IR Recommendation might manifest itself for the parties.

Both Parties were keen to move forward in a Mediated Arrangement. By then, I had identified that the post review process from February 2022 Review outcome on the next step had not occurred. This was an omission and one not saved by the Workers speedy referral to the WRC.

In fairness to the Employer, they asked that I propose a name of an accomplished Mediator to mediate between the worker and the two-remaining people from the list of 8. I felt that the parties should own this process and I asked them to nominate names. The Employer nominated two names and the worker subsequently communicated that he could not agree to this. Instead, he sought to enter a larger mediation process, including external bodies.

My role in this case is to seek to make Recommendations in a workplace dispute between employer and employee alone.

I have thought a lot about the circumstances of this case and how they have impacted on both parties.

It is truly an impasse complicated by low levels of trust. However, both parties stayed at this voluntary table and actively teased out possible enablers for change.

My opinion on the workers perceived climate of low trust, stems from the way the protected disclosures may or may not have reached their target as these were not “front door “declarations. They were named as such following an external bodies scrutiny. I appreciate that these are not before me, but they feature as a backdrop and catalyst in this case.

Given that this also co incided with the early days of the Legislation, it is clear to me that the policy and protocol governing such disclosures was not readily available. I have identified that the worker has got truly lost in a residual trauma following that period. His attempts to move forward are strident and genuine but at present, I find that he has got “lost in the maze of the forensics of a deeply compartmentalised past, which is causing him to lose out on how his workplace is seeking to help him navigate forward “

For me, he has failed to hear the positive endorsements issued by the Board Members.

It is clear that a complaint of corporate bullying was in the Workers contemplation as far back as 18 December 2019, note email of that date. The Policy operational at the employer workplace came into effect from 26 May 2020.

The Employer received his formal complaint against 8 named parties under the Dignity at Work Policy on   16 February 2021. They actioned an Investigation under the oversight of a high-ranking committee due to high-ranking officers being named in the complaints.

The Formal Investigation process is set out in section 31 of the DAW document. Terms of Reference were agreed with the Worker.

Under section 40 three possible outcomes are available to an Investigator

1         Allegations upheld on balance of probability.

2         Allegations not upheld on balance of probability.

3         No case to answer, in case of withdrawal or refusal to attend.

Witnesses named during interview to be approached by the Investigator.

There is provision for activating an outcome to the process.

There is provision for a review to be actioned within 10 working days.

“It should be noted that this review will be a paper-based exercise and that the role of the Reviewer is not to re-investigate the incidents which gave rise to the complaint. Rather, the Reviewer shall consider.

1 whether the investigation has followed the correct procedures contained in this policy.

2 whether the investigators conclusions could or could not be reasonably drawn from the evidence on the balance of probability.

On receipt of a report:

The HR Director should consider the findings of this report and decide upon a relevant course of action …… within 10 working days of their receipt of the Reviewers report.

I have found it necessary to set out a summary of the findings of the Investigation Team

“No findings of bullying have been made against any of the Respondents. Although some of the specific behaviours which the Respondents are alleged to have engaged in were found to have occurred, none of the allegations were found to amount to bullying ……. “

The complaint of corporate bullying was not upheld.

The Worker appealed.

On 14 February 2022, the Reviewer published her findings.

1 The procedures in the Dignity at Work Policy were followed.

2         Findings and Reasons were provided.

3         Findings were set out properly in the Executive Summary

4         Conclusions could be reasonably drawn on the balance of probability

The worker was deeply disappointed with the outcome of these processes and was high critical of both sets of authors.

However, he skipped ahead when he did not wait to ascertain how the employer was planning to manage the outcome in total prior to referral to the WRC.

It has not helped matters that the worker continues to present alone in these matters. Yes, he has been accompanied by trusted colleagues, but it is my honest opinion that the worker needs an advocate to walk beside him through the roads he has identified he wishes to travel on. However, he also needs that advocate to undertake some “reality checks in these highlighted destinations “He has lost his way on a number of occasions through ambiguity and misclassification of employee status.

I have found that the Investigators and the Reviewer, on appeal conducted a fair and transparent process of investigation into the 8 complaints of bullying and corporate bullying.

I am satisfied that the Employer followed SI 674/2020 Code of Practice in the operation of their local policy.

A formal complaint was accepted.

An Investigation followed on agreed terms of reference.

An appeal was conducted in line with 4.2.3 Appeals.

However, the process of the conclusion of formal process and follow up was missing. The Employer said they were overtaken by the workers referral to the WRC in April 2022. I find that the Worker did not canvas for this process to run.

Both parties have lost valuable time which could have been directed to this process of follow up prior to my investigation in the matter.

At any rate, we are where we are.

I have not found that the Investigation of the Review on appeal was flawed or should be reheard. I noted the worker had not advanced a witness list for consideration and he carried the burden of proof alone. I appreciate that the Executive summary was short, but the log of engagement was expansive throughout the investigation. I have identified an adherence to SI 674/2020.

I found that the Worker did not reflect sufficiently on the observations of the Investigator when she validated the presence of negative behaviour directed at the worker, albeit incapable of meeting the Supreme Court test of bullying. (Ruffley)

I find that I must have the courage of my own convictions when I say that the “power of now “is what really matters in this case. I must be mindful that 6 out of the 8 people complained of have left the business and the Employer has a new Board. The Worker has along a career ahead.

I have found merit in the dispute in terms of identifying a deep fault line in the employment relationship between the Parties , rather than in the Investigation conducted .

Dissatisfaction following release of Internal Investigation