ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000277
Parties:
| Worker | Employer |
Anonymised Parties | A Worker | A Communications Company |
Dispute:
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 - 00000277 | 16/05/2022 |
Workplace Relations Commission Adjudication Officer: Michael McEntee
Date of Hearing: 12/12/2022
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The issue in Dispute concerns the alleged failures by the Employer organisation to properly follow up/resolve a situation that arose between the Worker and a Colleague, Mr X, in the main yard of a South Leinster Branch premises. The Worker alleges that he was verbally and physically bullied by Mr X on the morning of the 18th of November 2021. The employment commenced in April 2019 and continues. The rate of pay was, at the date of the hearing, €712 for 37.5-hour week. |
1: Summary of Workers Case:
The Worker gave a comprehensive Written Submission and made a detailed Oral Testimony to the Hearing. The Worker concerned alleged that he was, on the 18th November 2021, verbally abused, at work, by a Colleague, Mr X. The situation became inflamed. He was also afraid of things getting physically violent. He immediately reported the matter, verbally, to his Line Manager, Mr N. Mr N asked him did he want to him, Mr N, to “have a word” with Mr X or did he wish to make a formal complaint. After some reflection the Worker decided to make a formal written complaint which he lodged with Mr N on the 18th November 2021. No formal Company response was received save for a Holding letter from Mr N on the 23rd November 2021. Nothing further happened until the 4th February 2022 when Mr N arranged a meeting between the Worker and Mr X. Support persons were also present. Three issues were in dispute. Firstly (1) the calling of the Worker by an Offensive slang term & accusing him of suffering from “Small man’s Syndrome”, secondly (2) the aggressive whistling of a provocative tune by Mr X and thirdly (3) a statement that he the Worker had offensive personal hygiene issues. Mr X apologised for no 1 and no 2 but denied no 3. This was completely unacceptable to the Worker, and he conveyed this to Management. The matter then was escalated to the Operations Manager, Mr B, who held a further meeting on the 9th March to seek a resolution. The Worker felt at this stage that the organisation was not taking the issue seriously and he was simply being fobbed off at every turn. Things got so bad that the Worker had to take stress illness leave for four weeks from the 21st March. The Regional Operations Manager, Mr B, wrote to the Worker on the 8th of April, but the letter was waffly and missed the point of how serious the issue was for the Worker and effectively ignored the completely unsustainable delays in handling the matter. Good company policies had been ignored and he had not been given the support or respect he was entitled to. On this basis he had sought the assistance of the WRC.
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2: Summary of Employer’s Case:
The Organisation concerned gave a Written Submission and gave Oral testimony from the Regional Operations Manager Mr B supported by Ms BE, Head Office, HR Department He stated that they had vigorous anti Bullying -Respect/ Dignity in the Work Policies. He was a close colleague of Mr N, the Line manager, who unfortunately could not attend the Hearing. It was accepted that the follow up and handling of the complaints from the Worker had suffered from regrettable delays. However, in mitigation he referred to the time after the November date to early January being a very busy traditional high-volume period for the Organisation. Mr N was described (by Mr B) as the Manager of a very busy operation with a large number of staff. At the time of year concerned it was exceptionally busy. From the Oral Testimony it was clear that Mr N had given Mr X a good telling off, regarding his verbal behaviour and was warned off any repetitions. It was also pointed out that at the time in November both the Worker and Mr X were having off the job serious family/personal issues which certainly had not helped their mood at work. Mr N, as reported by Mr B, had emphasised the strong anti-bullying /Dignity at Work Polices of the Employer and he (Mr N) had made arrangements to try in so far as possible to keep the Worker and Mr X physically apart in the Yard and had made sure that both knew that he was actively monitoring the situation. It was described in the Oral Testimony as basically good operational management by Mr N, an experienced man Manager. All Parties had agreed that they did not want disciplinary action that could result in a dismissal or serious repercussions for either Party. When the Worker had issues following the February meeting with the “Personal hygiene” issue and the lack of an apology from Mr X, Mr B, the Regional Operations Manager(the Respondent Witness) had gotten involved. He had tried to get a resolution at a meeting on the 9th March 2022. The Worker concerned declined to have a face-to-face meeting with Mr X, the alleged perpetrator. Mr B stated that the issue had been treated as a Grievance as against a Complaint under the Dignity at Work Policy. It was essentially a once off incident and did not really qualify for the Dignity at Work policy. There was also a lack of corroborative evidence and the witness suggested, Mr J B, when interviewed later had recalled hearing heated exchanges but was not able to catch the exact words. After time and after reflection Mr B wrote a comprehensive reply to the Worker on the 8th April to close off the matter. He pointed out that Mr N, the Local Manager, had already expressed regret for the delays in dealing with the matter. In conclusion, Mr B, for the Employer, stated that they had done all they could to resolve the matters which at the end of the day were a verbal run in between two colleagues. Apologies had been offered by Mr X and regrettably not been acceptable to the Worker. There was little else the Employer could humanly do particularly when neither party wanted formal measures that could end in negative consequences for either staff member. |
3: Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The case is referred under the Industrial Relations Act,1969 for a Recommendation.
Extensive Oral Testimony was given supported by extensive Written materials.
The Oral testimony from both sides was clear and concise.
A number of points were noted by the Adjudication Officer.
Firstly, a considerable delay overhangs the process. The original contested incident took place on the 18th November 2021 and was not really concluded, in the Employer’s view, until the letter from Mr B, Operations Manager on the 8th April 2022. Mr B expressed his regrets that the matter was not dealt with “more expeditiously”. However, in the Oral Hearing the point was made that the processing of the complaint overlapped with the Christmas Season, traditionally a peak time for the Business.
The incidents referred to took place between Operative colleagues in a busy Despatch/Loading Yard. There was no doubt that an incident had taken place but in the absence of clear witness evidence as to the precise details a degree of vagueness was present. It appeared that there were three strands to the matter – (1) Name calling and the “Small Man” allegation, (2) aggressive whistling of an offensive Tune and (3) very serious allegations regarding the Personal Hygiene of the Worker.
The main Employer Manager involved was Mr N. Unfortunately, he was not available for the Oral hearing but his immediate Superior Mr B, the Operations Manager was.
Neither side appeared to have any issue with Mr N and seemed to regard him as a good day to day Manager in a very busy Yard with many staff.
Through his efforts and supported by Mr B, he appeared to have gotten Mr X, the alleged perpetrator to apologise for items I and 2 above. Item 3, the Personal Hygiene remarks were denied. The only possible witness was Mr John B who recalled a heated incident in the Yard but some distance from him and largely out of effective earshot especially as regards the Hygiene Issue.
The Hygiene issue was a matter of great significance to the Worker and had, it was obvious to the Adjudication officer, deeply upset him.
As the case was under the Industrial Relations Act,1969 and the atmosphere was largely amicable considerable discussion took place between the Parties and the Adjudication Officer.
In forming a Recommendation, it was clear to assume that Mr N, the immediate Manager, had taken the issue seriously and had given Mr X, the alleged Perpetrator, a good verbal telling off as Manager to Worker. Mr N had “marked his (Mr X’s) cards”. Mr N had taken all possible physical steps to keep the two Workers apart in the Yard and had made it clear that he was also in the Yard and would be watching the Parties. Repetitions from Mr X would result in Disciplinary action.
Mr B, the Operations Manager explained that as it was largely a once off incident the Dignity at Work Company policy was considered inappropriate.
It was the Employer view that they had “Done everything humanly possible” in a situation of a verbal row between colleagues.
The Worker was not satisfied with this.
The Adjudication Officer, in conclusion and based on his own Industry experience, came to the view that managing a Delivery Yard with many staff coming up to a Christmas peak was a challenge that the Manager Mr N (as reported by Mr B) had handled very well. A verbal row had taken place between two staff members. This is a feature of any industrial environment and colleagues will often not speak personally, other than for direct operational reasons, to one another for many years afterwards. The old adage that you only have to “work civilly” with colleagues appears to have some relevance.
Mr N had done his best to sort it out, appropriately in the Adjudication Officer view, at Shop Floor level.
The other issue was the delays in addressing the issue- “not dealing with it more expeditiously” - and the Employer as a whole has expressed regrets for this.
A gesture of closure for the entire incident would be apprortite here in the view of the Adjudication officer.
Accordingly, it will be recommended that the Worker and ideally Mr X, overseen by Mr N, the Manager, agree a suitable local Charity and the Employer will corporately made a donation of € 500 to the Charity as a Closure Gesture to the entire incident.
To be clear this a Gesture of Good Will, recommended by a WRC Adjudication Officer, and is not in any way an admission of any wrongdoing by either Party.
In agreeing to this charitable gesture both the Worker, Mr X (the other Party), and the Employer accept that the incident is now closed and concluded.
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4: Recommendation:
IR- SC - 00000277
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
It is Recommended that the Employer, in view of all the incidents and follow ups that characterised this case make a without commitment Charitable gesture of €500 to a local Charity agreed by the Parties involved and the local Manager.
It is Recommended that the Parties then accept that the case has concluded.
Dated: 08-06-2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Verbal harassment, Dignity at Work, Charitable Donation. |