ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: CA-00049304
Parties:
| Worker | Employer |
Anonymised Parties | Technical Officer -Manager Grade | State Agency |
Representatives | SIPTU | HR Managers |
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 | CA-00049304 ADJ-00037911 | 23/03/2022 |
Workplace Relations Commission Adjudication Officer: Janet Hughes
Date of Hearing: 08/03/2023
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. The dispute was fully heard on the scheduled date. However, I did ask for further documentation related to the investigation which is at the centre of the dispute. Having examined that voluminous documentation, what follows are my considered view and recommendation in an effort to resolve this element of what is a complex dispute involving employees who are not party to the dispute. The terms employee and employer are used to describe the parties as far as possible.
Background:
This case is concerned with an appeal against the outcome of an investigation and review of complaints made which commenced with two complaint documents being submitted by him one of which was described as a claim under the DAW against the employee Y and the second of which was described as a grievance in relation to Y and two-line managers-referring also to a separate complaint under the DAW. The complaints made by the employee in this case were not upheld following an investigation and review-both conducted by external practitioners. There was a finding of a vexatious/malicious complaint and he received a disciplinary sanction on this basis. He is seeking a new external investigation with related procedural conditions attached. The employer has amended certain aspects of their procedures since this investigation but is opposed to a new investigation. |
Summary of Workers Case:
The employee is a long serving member of staff who was promoted to a team lead position in 2017. Promised necessary training for the role was not provided. In July 2018 an worker who will be referred to as Y in this text was assigned to report to the employee. On 28 May 2020 the employee was informed that Y had made a complaint about him., that he was proceeding with a formal grievance and the employee was removed as line manager of Y. He was not provided with a copy of the complaint by Y then or since. On 13 July 2020, the employee submitted two complaints. One was a grievance that part of his line management function was wrongfully removed from him and also that he received no right of reply to the grievance submitted by Y. Separately he submitted a DAW complaint against two named managers based on their involvement in the matter. An external investigator was appointed to investigate the employee’s complaints. The union submitted that this was to be done under one policy, the DAW policy which was not agreed with the employee. A report from the investigation issued in April 2021. The employee’s complaints were not upheld but the employee was shocked to find that the investigator found that his complaint was vexatious. The employee wrote to the investigator setting out the reasons why he disagreed with the report and while these were acknowledged they had no effect on the final report. The employee appealed and an external person was appointed to conduct a review. No terms of reference were provided for this stage. The employee provided a detailed document setting out the reasons for his appeal. Much of that appeal was concerned with the operational structure and the employee felt that he should have received the opportunity to explain these points to the appeal hearer. However, the appeal hearer did not meet with the employee -but he was never advised that this would be the case. The Appeal hearer upheld the findings of the investigation report in a document dated 19 August 2021. What followed was a disciplinary process with the employee initially receiving a final written warning reduced in January 2022 to a written warning on appeal. The original decision that Y would no longer report to him remained in place. On behalf of the employee, SIPTU sought a reinvestigation of his grievance/complaint by an external investigator to be agreed with agreed terms of reference and the employee having the opportunity fully in the new process. The basis of this position is a contention that fair procedures were not followed in that management failed to investigate his grievance under the grievance procedure and his complaint under the DAW procedure-in fact both were decided under the DAW policy. The employee was not consulted about the terms of reference including which policy would be used to decide the issues and he was excluded from the appeal process by not being allowed to meet with the hearer to make his case. The effects of these shortcomings is a tainted investigation and a flawed process. The employee feels that he was denied due process. He was not shown the complaint against him and he felt obliged to try to address this situation by responding in order to protect his own reputation. He is certain that a fresh investigation established as proposed by SIPTU would vindicate his position and lead to the removal of any ongoing sanctions against him including the removal of any record of those sanctions from his record.
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Summary of Employer’s Case:
In June 2020 an informal process was put in place to deal with a grievance by the employee Y against the employee in this case. No disciplinary sanction resulted from this process but an arrangement that Y would report to another line manager was put in place, originally intended to be a temporary arrangement. Two complaints were made by the employee on 13 July 2020. As these were concerned with the same persons and set of circumstances it was decided and the employee was so notified that they would be investigated under one procedure. In a notification dated 30 July 2021. Y and the employee in this dispute were asked to agree to mediation-the employee refused to participate. 22 October -TOR were issued to those involved and they included a specific reference to a possible finding of vexatious or frivolous. No issue were raised by the employee concerning the TOR. All parties received all documents including the minutes of meetings. 14 May 2021 the external investigator provided a report to the parties and the employee made his comments. 11 June 2021 a final report was issued by the investigator. The employee lodged an appeal. An external reviewer was appointed -to review the procedures-not to re-investigate the complaints. No issues of a procedural nature were raised by the employee at the appeal stage. 13 August 2021 the external reviewer issued his report. 8 September 2021 - disciplinary hearing following on from the report-final written warning issued. Area of responsibility to include the employee Y was removed. 6 January 2022 appeal of disciplinary sanction-reduced to a first written warning-with removal of the area of responsibility. The Employer rejected the proposal that a further investigation should be initiated. They have since amended aspects of their procedures but this was a fair thorough and transparent investigation process. The employer made every effort to resolve this difficulties in this working relationship including expending considerable time and resources on the investigation of the complaints – a process which was extremely challenging for all concerned including the employee in this dispute.
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Conclusions:
When a worker submits formal grievances/complaints against another worker or workers and the employer engages in a full investigation, especially an external investigation, compelling reasons should exist before Adjudication Officer c recommend what would in effect be a reinvestigation of the original grievances/complaints. In my view certain basic elements must exist before the AO would take such a drastic step: 1. There must have been complaints about procedural issues before or during the investigation and those procedural complaints must be valid ones when viewed objectively in terms of fairness and equity of treatment and/or 2. It must be evident to the AO that an investigation was not conducted to a standard which followed basic requirements such as providing terms of reference in advance, taking statements, providing those statements to the main parties, providing an opportunity to the main parties to comment on those statements and/or 3. While not investigating the complaint or seeking to second guess the investigator, an AO could decide that the findings were perverse, being so at odds with the available evidence or that the findings did not address the complaint made to such an extent that they may be regarded as unsafe and should be set aside in part or in whole. 4. Sustainable evidence of direct interference in the conduct or outcome of an investigation, whether that investigation is conducted internally or externally on behalf of the employer.
The application of these criteria requires a balanced and careful approach to ensure that, on the one hand, it is not just a case of a worker not liking or not accepting the outcome of an investigation and on the other hand it cannot be the case that there can be no legitimate challenge to the outcome of an investigation, even an external one, which may have taken a lot of resources, including finances, to investigate the intra employee dispute. In this particular case I find that none of the requirements exist for recommending that the result of the external investigation be set aside and a fresh external investigation be commissioned for the following reasons: The employee lodged two complaints against Y on 13 July 2020 one a grievance and the other a complaint under the DAW policy. The grievance document included the two managers and also reference Y. Both complaints were fully investigated. The employee was notified of the TOR and he did not query them and neither it would seem did he seek Union advice although that was available to him as a member of SIPTU. Those TOR clearly stated that a possible finding was one of vexatious or malicious under point 5.4 of the TOR. Given the confused structure of the complaint documents which refer to different employees and policies it would have been prudent to clarify with him which was which in terms of the different policies. However, the employee is a manager and an employee of long standing who should have been reasonably aware of the different intent and purpose of the two policies. In short, he must take some responsibility for the muddle which followed in respect of the criteria for decision making. Regarding the appeal, that this would usually and not unreasonably be a paper review -being concerned with procedural issues would be normal-it is not and should not be an opportunity to re-run an investigation. This should be made clear to any potential appellant to save them the emotional energy pf trying to re-run their case or challenge findings at that stage. In this case the employee did not raise procedural issues at the review stage. As a matter of act such concerns were not raised until the disciplinary procedure. In terms of the findings-these are expressed by the investigator in strong terms: no evidence, misleading, extremely unprofessional, deliberately false and misleading. These findings are all expressed in the context of the evidence available to the investigator and therefore the findings could not be considered at odds with that evidence or perverse. The combination of two policies within one set of terms of reference while setting the principles of the DAW policy as the benchmark for findings was wrong and I note that the current management seem to understand this and changes were made since this case to ensure that such a muddle could not re-occur. Nonetheless given the strong assertions by the investigator based on the evidence available to her, it is reasonable to conclude that it was that evidence which informed her findings and not mainly or solely the terms of either policy. In other words, these complaints would not have succeeded even if they were separated correctly as they should have been from the outset. As I was not tasked with deciding on the fairness or otherwise of the disciplinary sanctions, I cannot comment on the contention by SIPTU at the disciplinary stage that the crossover between the two policies was the sole cause of the subsequent disciplinary sanction. In summary I find that this is a case of a worker who does not accept or agree with the findings in respect of his grievance/complaint and not one which would justify a reinvestigation of his grievance/complaint. From a discussion at the hearing, it is evident that the relationship issues between the employee in this case and Y first identified in 2020. Only actions by the employer and co-operation by the employees concerned can bring about closure. The route sought in this dispute-to revisit matters three years later would not provide any prospect of closure -even if there were procedural reasons for doing so. For the avoidance of doubt, the appropriateness or otherwise of the disciplinary sanction imposed on the employee was referenced in the submissions. However, it was not part of this dispute, I was not asked to consider it by way of a recommendation and it is not therefore encompassed by the recommendation.
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Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employee accept that the issues he raised against other employees by way of a formal complaint/grievance in July 2020 were investigated and that, albeit reluctantly, he now accepts the outcome of that investigation.
Dated: 04 May 2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Investigation of grievance/complaint/request for fresh investigation |