Worker

Employer

Anonymised Parties

Employee

Employer

Representatives

Anthony Collier Collier Law Solicitors

Management

Act

Dispute Reference No.

Date of Receipt

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

14/10/2020

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

07/07/2021

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

07/07/2021

The Complainant is a postal clerk employed since 2000 working part-time.

The Complainant was subjected to harassment on ground of her age. A Supervisor began making jokes over the Complainant’s age. Two other members of staff began laughing and said the song on the radio by Gilbert O’ Sullivan was her vintage. The Supervisor set a tone which was discriminatory and did not respect the Complainant’s dignity at work. The Complainant was made to feel different over her age and felt harassed.

On 5th June 2020, the Complainant was at work in the post office and turned around when without warning there was a “resounding whack” on the armrest of her chair which shook with the force. The Supervisor grunted aggressively “serve the customer”. The Complainant felt alarm, fear and shock. She was put in fear and her dignity had been undermined. A Consultant Psychiatrist stated the Complainant had panic attacks walking to work the morning after the incident, with palpitation, rapid breathing feeling dizzy and sweaty.

On return to work on 9th June 2020, the Complainant was called into see the Manager and told it was of the utmost importance there was no gap in service to customers. It was put to her there was a 21 minute gap between her last transaction on 5th June 2020 and the employee who replaced her and took on her first customer. The Complainant submits she was given a verbal warning for slacking. There was no enquiry as to the reasons behind the gap. The Complainant told the Manager about the incident with the Supervisor which he ignored.

On 3rd July 2020, the Complainant submitted a formal grievance under the Dignity at Work policy. There was no reply. The Respondent did not comply with the Dignity at Work policy as the informal approach was not considered, nor notified of a contact person. No designated person was appointed to establish the facts of the complaint. The Respondent refused to notify the complaint to the Supervisor as they said this would be “unfair”.  Investigators were not appointed or terms of reference. The Complainant was forced to submit a second complaint as no steps were taken to address her concerns. The Respondent frustrated all attempts by her to view the CCTV in a safe environment, and no witness statements were ever provided.

On 13th August 2020 the Complainant was told that the HR Manager had seen the CCTV and it did not appear to support her complaint. He said he cannot give it to the Supervisor as it is unfair to him and appears to be conclusive evidence he did only “tap” the chair. The HR Manager said he did not want her going down a road she might regret. The Complainant was invited to view the CCTV in the office, but could not do this in the presence of the Manager.

The Complainant submits that the Respondent failed to follow their procedures to such an extent there was a detrimental and severe impact on her health, and she felt threatened by the HR Manager’s comments. She raised a number of issues in a letter of 24th August 2020, but no steps were taken, or to allow her view the CCTV. The Complainant was notified she would be put on half pay on 17th September 2020. The Respondent relies on the IB code of practice & CCTV policy as the basis for refusal of access to the CCTV, however, there are no grounds and it amounts to bullying. The HR Manager received a report from the Supervisor. The Supervisor said he legitimately approached the Complainant on 2 occasions as she was not serving customers and did not strike her chair as described. The Complainant was accused of exaggeration. The HR Manager communicated a tainted and biased outcome in breach of the procedures.

The Complainant raised another grievance dated 9th October 2020 under the Dignity at Work policy in relation to the HR Managers response, threatening to dismiss her grievance, withhold sick-pay, refusal to facilitate access to CCTV, not progressing her grievance, threats, harassment due to her age, victimisation for raising concerns over health and safety. The Complainants grievance was not upheld. No witness statements were provided to the Complainant. The grievance was reviewed by the Business Development Manager. He upheld the finding that the Supervisor did not hit the chair in the manner described. He asked the Complainant to comment on the allegation that she was presenting challenges for her Supervisor by not serving customers and remaining at the counter to finish reports. The Complainant objected to this as she said CCTV should not be used to raise performance issues as it is for security. The Respondent did not deal with her grievance adequately.

On 23rd October 2020 the Complainant was notified the Company intended to withdraw her sick-pay as she was not co-operating. The Complainant said the Respondent unreasonably refused to give access to the CCTV in a safe environment. On 30th October 2020, the Complainant’s sick-pay privilege was withdrawn from 23rd November 2020 due to the Complainant’s persistence in pursuing complaints that are proven groundless. The incident was an isolated incident and did not concern bullying. It referred to the focus moving to the possibility the complaint may be malicious. The Complainant submitted her third grievance to the CEO on 8th December 2020, claiming that the HR Manager continually harassed her while on certified sick-leave, the HR Manager should have recused himself as he refused to investigate the complaints while communicating a predetermined outcome, misusing personal data, loss of sick-pay, failing to accept medical certificates and threats of disciplinary action. The HR Director replied to say he did not see a basis for initiating a formal investigation as he cannot see any prima facie evidence of bullying and harassment. The Complainant replied saying she considered the withdrawal of sick pay to be retaliation and penalisation for pursuing Dignity at Work complaints. The Complainant lost 11.5 weeks of €423.14 gross pay.

The Complainant has 21 years of service with the Respondent. Following receipt of the Complainant’s complaint, the Respondent provided a range of supports including their Grievance procedure which is collectively agreed with its group of trade unions. As the Complainant was on extended sick-absence, the Respondent engaged through the Attendance Support and Management Process. The Company made every effort to use agreed procedures to address matters but was frustrated by her lack of engagement.

The Complainant was absent from 18th June 2020. On 3rd July 2020, a letter of complaint was received by the HR Manager regarding an incident on 5th June 2020. The Complainant asserted her Supervisor who approached her hit the armrest of her chair with aggressive force so there was a whack. She said she considered it an assault and was nearly knocked out of the chair. She was put in fear for her health and safety. The Branch Manager in the retail office investigated the complaint and CCTV footage was viewed. The Manager formed the view that the CCTV did not support the Complainant’s description of events. At an ASMP review the Complainant was informed of this, and a proposal for a facilitated meeting with the Supervisor to promote positive interactions. The Complainant did not take up the opportunity to review the CCTV footage.

The Supervisor gave his version of events which were that he tapped the Complainant’s chair to get her attention. The evidence from the investigation of the incident was the incident did not occur in the manner described. The Complainant did not take up the offer of a conciliatory meeting with her union representative or put forward any proposal. She submitted six complaints to the Workplace Relations Commission on 14th October 2020 prematurely.

The Supervisor responded in relation to the incident in the office when Gilbert O’ Sullivan came on the radio and he said “this is more [Complainant’s] vintage”. When the Complainant informed him she was hurt and offended, he said he was mortified he offended her and made a full apology. The Supervisor said it was a light-hearted remark and was not malicious. The Supervisor also said he made a mistake one day on who was relieving whom which impacted on the Complainant when she raised this.

The Respondent denies any breach as the sick-pay entitlements change due to length of absence of the employee from full pay to half pay following 92 days absence within 12 months as set out in Circular 35/2016. The pay increase was a collective agreement brokered under the Labour Court, which provided for the introduction of the revised sick pay scheme. This was communicated to staff through Circular 35/2016.

The Company sought to engage the Complainant and her Supervisor in a conciliatory meeting in order to foster positive working relations. The Grievance procedures were applied but not exhausted due to lack of engagement by the Complainant.

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

The Complainant lodged a number of grievances which were not upheld by the Company regarding an incident which took place on 5th June 2020 which she says was a whack to her chair which shook, a joking comment by her Supervisor and being treated differently by her Supervisor in a work context. The Complainant says she felt alarm, fear and shock and felt her dignity had been undermined. The Complainant’s Consultant Psychiatrist in 2021 stated the Complainant had never had any issue like this previously, she reported suffering from panic attacks as a result. She found the Complainant was suffering from an adjustment disorder preventing her return to work until the dispute was resolved.

The Complainant told her manager about the incident and says she was given a verbal warning for slacking. Following lodging her first grievance on 3rd July 2020, under the Dignity at Work policy, the Complainant was not interviewed or witness statements provided. The Complainant refused to view the CCTV in the office, as she said she could not do this in the presence of the Manager. The Respondent’s review of the CCTV indicated the grievance would not be upheld and the Complainant was informed. The Complainant felt pressurised to drop her grievance and the outcome of the grievance was predetermined.

The Complainant says she felt threatened by the HR Manager’s comments. The Complainant was accused of exaggeration. The Complainant’s performance was raised as part of the Grievance. She objected to use of CCTV for performance issues as it is for security purposes.

On 23rd October 2020 the Complainant was notified the company intended to withdraw her sick-pay as she was not co-operating with the Attendance Support Management Policy in not taking action to assist her return to work and co-operating with viewing the CCTV. The Complainant viewed the withdrawal of sick pay to be retaliation and penalisation for pursuing Dignity at Work complaints. The Complainant lost 11.5 weeks of €423.14 gross pay.

I have considered carefully the evidence and submissions of the parties. The Respondent formed a view in relation to the incident in the early stages from the CCTV. However, the Respondent should have investigated the incident, interviewing witnesses, providing statements to the parties, and providing reasons for the decision in accordance with Statutory Instrument 146/2000 and good industrial relations practice.  The Respondent offered a conciliatory conversation to the Complainant at the early stages with a view to resolution of the issues, but this was unfortunately not taken up by the Complainant. The Complainant did not propose any way to resolve the dispute even though resolution is recommended by her Psychiatrist to facilitate return to work.

The Respondent’s Attendance Management Support Policy allows consideration of co-operation with processes in return to work to be taken into account in continuation of sick-pay.

I recommend no further action is taken.

Investigation prejudged, compliance with fair procedures