Worker

Employer

Anonymised Parties

General Operative

Manufacturing Company

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-00036514-001

03/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036514-002

03/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-0004478-001

24/06/2021

The Worker is engaged as a general operative with the Employer. On 3rd June 2021, the Worker referred a dispute within the definition of the present Act to the Commission. A further dispute was referred on 24th June 2021. In circumstances whereby the Employer failed to refer an objection within the statutory timeframe, the matters duly proceeded to hearing. By submission, the Worker alleged that the Employer found that an internal complaint referred by him was deemed “malicious” in contravention of the Employer’s own internal procedures. He further submitted that the disciplinary proceed invoked on foot of the same was fundamentally flawed and should be set aside. In denying this allegation, the Employer submitted that the matter was thoroughly investigated by an external third party and that the sanction imposed was warranted in the circumstances.

A hearing in relation to this matter was convened for, and finalised on, 20th May 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by wither side during this hearing.

Both parties issued extensive submissions in advance of the hearing. These were expanded upon and contested by the opposing side during the hearing. No issues as to my jurisdiction to hear the present dispute were raised at any stage of the proceedings.

In circumstances whereby the three complaints were presented as single narrative, I will issue a recommendation under the latest dispute to be referred. 

The Worker alleged that one of his managers pushed him during working hours in September 2018. On foot of the same, the Employer commenced an internal investigation into the grievance raised by the Worker. Following the same, the Employer not only found against the Worker, but further found that the complaint itself was malicious and recommenced that the matter be further pursued under the Employer’s disciplinary policy. The Worker submitted that this was an extraordinary finding, was not based on actual evidence and had no contractual basis.

Notwithstanding the foregoing, the matter proceeded through the Employer’s internal procedures. Following numerous delays arising as a result of the restrictions arising from the Covid-19 pandemic, this matter proceeded to investigation before an independent third party on 18th March 2021. On foot of the investigation report, the Worker was issued with a final written warning on 1st April 2021. The Worker sought to appeal this outcome, however the Employer denied ever receiving such a appeal and the matter was deemed to be finalised.

By submission, the Worker stated that the Employer was in breach of their own internal procedures in finding that the original complaint was “malicious” in nature. They submitted that the disciplinary sanction imposed on foot of the same should be set aside and that the Worker receive compensation for the distress caused by the process.

By response, the Employer submitted that the allegation against the Worker was valid, and the investigation was undertaken in accordance with the Worker’s natural and contractual rights.

On receipt of the Worker’s complaint, the Employer commenced a thorough investigation into the allegation. Having reviewed interviewed the Worker, and viewed the CCTV, the investigator formed the view that the subject matter of the allegation did not occur. In addition to the same, the investigator found that in circumstances whereby the relevant CCTV footage conflicted with the statement provided by the Worker, that the complaint was malicious in nature. In such circumstances, the investigator recommended that the matter be further investigated in this regard.

Given the gravity of this allegation, the Employer engaged the services of the third party investigator for this purpose. Unfortunately, the progress of this investigation was unavoidably delayed, with the parties meeting in December 2020 and a report being issued in March 2021. On foot of this report, the Worker was issued with a final written warning in respect of his conduct. In this regard, the investigator found that “there is an immediate need for a significant improvement in the tone of the engagement of (the Worker) with company management…as the present situation is not sustainable into the future”.

The Employer denied that the Worker sought to appeal this outcome in line during the time-frame set out in the correspondence. On foot of the same, the Employer submitted that the matter was finalised. 

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

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

The first point of contention between the parties relates to the finding that the Worker made a malicious complaint in respect of his manager’s conduct. The first point raised in relation to the same relates to the Employer’s contractual entitlement to make such a finding. While it is accepted that the Employer’s Dignity at Work policy allows for a referral of an alleged “malicious complaint”, the Worker has submitted the original complaint the Employer’s grievance procedure, which makes no such provision. While it is apparent that this is the case, the Employer has retained an express contractual right to investigate an alleged malicious complaint made by an employee. The fact that this right does not arise under the same heading as the grievance procedure adopted by the Worker is somewhat immaterial. I further note that the Employer does not require an express contractual right to investigate an individual matter that it believes to be in contravention of its disciplinary policy.

While the Employer may be within their rights to make such a finding, they must also demonstrate that the were entitled to make such a finding in this particular instance. Having regard to the evidence presented by the parties, it is apparent that the person charged with investigating the grievance, viewed the relevant CCTV and took witness statements from the witnesses present. On review of this procedure, it is not apparent that the Worker had sight of either the witness statement that contradicted his own or the CCTV in question. In circumstances whereby these statements and footage were used to make an averse finding against the Worker, he should have been provided with an opportunity to view and contest the same as part of the process.

I further note that at the conclusion of the grievance investigation, the investigator found that, “It is my view having considered all the evidence that this is malicious complaint”. In this regard, it is apparent that the matter being investigated at this point was the grievance raised by the Worker. The finding in respect of the malicious element of the complaint is one that can only be made following an investigation in this regard under the disciplinary policy. While I note that the matter was further investigated under the Employer’ disciplinary policy, this correspondence was relied upon by the Employer throughout.

While I note a significant volume of correspondence regarding the appointment of an independent investigator, the Employer was correct to engage the services of such a person and were entitled to reply upon the report that was issued on foot of the same. However, it is apparent that the Worker sought to appeal the disciplinary outcome issued on foot of the same. While a conflict arises as to whether the notice of appeal was received within the timeframe indicated on the correspondence, there can be no doubt that the Worker expressed his dissatisfaction with the outcome and his intention to challenge the same.

Having regard to foregoing, I partially find in favour of the Worker in respect of the points raised. Regarding redress, the Worker has requested that both investigations be set aside and commence afresh. In circumstances whereby the subject matter of the grievance occurred years previous, and the disciplinary sanction imposed on foot of the same had expired on the date of the hearing, I find no benefit to any of the parties in re-litigating what should now be considered historical matters.

In an effort to finalise a long running series of conflicts between the parties, I recommend that the Employer pay the Worker the sum of €3,000 in compensation. I further recommend that the parties explore the potential engagement of an external mediator resolve any issues regarding communication arising in the workplace.

Malicious Complaint, Appeal