Worker

Employer

Anonymised Parties

Employee

Employer

Representatives

Myles Gilvarry Gilvarry & Associates

 HR Representatives

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 - 00001501

30/06/2023

On July 5th, 2022, the employee raised several grievances with her employer. It seems that  a process of inquiring into those grievances was commenced but not concluded by the HR Department. On December 12th, 2022, the employee submitted a complaint of bullying to the employer. This was screened under the DAW policy and found not to fall within the terms of the policy for the reasons set out on the standard form. The employee was advised she could refer the dispute to the WRC which she did in June 2023. It is the outcome of the screening process with reference to the handling of the earlier grievance which form the basis of this dispute.

The employer failed to adhere to their own grievance procedure in terms of timeline for investigating the grievance. The employee did meet with the HR Manager on two occasions and understood that he was going on leave and that another meeting would take place on his return. As it happened the HR Manager left for another employment in or around August 2022. During the hearing it was explained by reference to the notes of a meeting with HR that it was that manager who said he could not deal with some issues as they were proper to the DAW policy. Later that year the employee submitted her complaint under the DAW.

The issues submitted for consideration by the WRC: whether the employers DAW Policy is binding on the employee in light of the most recent Code of Practice (2021).

If the policy is binding, was it operated fairly in the case of the employee in this dispute?

Seven incidents covered within the complaint document were cited as falling within the definition of bullying.

The employee was entitled to a fair screening process and the fairness of the process was questioned.

A recommendation that the complaint be processed correctly in line with the recent Code of Practice as a complaint of bullying and that compensation be awarded to the employee were sought on her behalf.

The employee submitted a 32-page complaint document at the conclusion of which she sought six forms of remedy-five of which fall within national public sector policies. The complaint received on 12 December 2022 was screened by an appropriate HR person which it was explained at the hearing was not either of the HR Managers at the hearing. The entire DAW Policy is agreed with the Trade Unions and the screening part of the policy is in place since 2009. It is the employer’s position that they have fulfilled their obligation as regards the application of the policy and there has been no breach of that policy.

The Employer Policy on DAW is a collective agreement which since the 2009 policy has included a screening element. Whether an employer has a right to screen out a complaint of bullying is not a matter for an Adjudication Officer to determine in an individual dispute as any decision either way would have wider implications for a body of workers and the collective agreement. What I am required to do is to examine if the collective policy was correctly  applied in the case of this employee. In circumstances where the following breaches of the policy occurred, I can only find that the employer did not follow their own policy:

-          Failure to follow the informal stages

-          Failure to offer mediation

-          Issuing a finding which was not neutral i.e. implying that the issues raised were reasonable actions on the part of those named in the complaint in the performance of their management functions.

-          Describing the complaint as ‘not upheld’

-          Failing to provide an alternative route through the employer grievance procedure as provided for in section 8.7.5 of the procedure.

Indents 3 and 4 are particularly significant. The reasoning why the complaint is screened out is a specific subjective judgment as applied to the complaint and the description of the complaint as not upheld goes far beyond the appropriate language of a screening process which is understood to be a process of passing a ruler over individual complaints to see, if they were to be upheld, would they fall within the general definition of bullying. While both the recent Code of Practice and the DAW policy in the employment lay great emphasis on mediation, no informal process was offered to the employee - all stages were bypassed in a few days and the complaint was screened out in manner inconsistent with the purpose and intent of that stage of the process. It is well known within the employment that the screening is designed to avoid unnecessary time consuming and difficult investigations under the DAW Policy which could not hope to succeed under the definition - for example where there was a once off incident or perhaps even two incidents over an extended time period. The screening process cannot stray into the judgemental, as it clearly did in this case.

The employer advised the employee to refer the decision to the WRC- for what purpose is not clear from the letter. It suggests that the WRC has a role in determining whether a complaint falls within the definition of bullying whereas we have no such role in support of the Health and Safety Act, or the related Code of Practice. The employee was not referred to the grievance or any other policy-although it has to be assumed that the reviewer of the bullying complaint was impartial and external to the hospital and therefore not aware of the earlier grievance process.

Aside from the many shortcomings in applying their own anti bullying policy to the complaint, the backdrop to this dispute is that the employee originally participated in a stage 3 hearing of her grievance which the employer never concluded and it was in the course of that hearing that the HR person appears to have influenced the decision of the employee to refer her grievance under the DAW policy on the basis that he could not address the issue. Odd to say the least.

It is acknowledged that both parties did make efforts to resolve the dispute before the end of the hearing. The recommendation is designed to bridge the gap between the parties taking the concerns on both sides into account.

In circumstances where the employer cannot point to any action by the employee where she breached the two sets of internal procedures which she utilised and whereas they failed to apply those same procedures correctly, there is merit in both attempting to move these matters on and awarding some recompense the employee. To this end I recommend that the person suggested by the employer at the hearing be engaged to review the full grievance submitted in December 2022. The terms of reference of that review should be to assess which of the elements of the complaint fall to be considered under the DAW Policy, if any, and also those which fall more appropriately to be heard under the grievance policy as the alternative. Based on his findings, an external investigator is to be appointed under appropriate terms of reference to investigate those elements which fall under the DAW Policy and those which are deemed by the reviewer to fall under the grievance procedure. The decision of the reviewer as to which policy is to be applied to the investigation stage will be binding on the parties. If there are to be two investigations they cannot overlap in terms of the standards of behaviour and definitions to be applied to any findings. The definition of bullying can only be applied to complaints to be investigated under that policy. Those issues identified as more appropriate to the grievance policy are to be investigated at stage three as an entirely fresh investigation rather than a resumption of the incomplete process undertaken by HR or as an appeal of a process at local management level which I have no sight of and cannot automatically accept was conducted appropriately.

Recognising that the employer will incur costs as a consequence of this recommendation, I do not propose to award anything other than a modest sum of compensation. However, the journey forced upon the employee by various employer representatives has been circuitous as well as costly and moreover, resulted directly from the employer’s own actions and inactions, in breach of their own policies.

The screening exercise to be completed within three weeks of the date of acceptance of this recommendation by the employee. Any investigation/s to commence no later than eight weeks after the outcome of the review allowing for the availability of an external investigator, the necessary notification to the other employees involved in these matters and the conclusion of terms of reference based on the relevant policy or policies (and the intervention of Christmas). 

Investigation of Complaint of Bullying