ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001303

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:            

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 Worker is in dispute with her Employer concerning alleged bullying and harassment she contends that resulted in her having to go on sick leave with stress. 

Summary of Workers Case:

The Worker gave extensive written and oral submissions summarised as follows:

Her cause for complaint relating to Industrial Relations Issues falls under the Employer’s inadequate addressing of bullying and harassment in the workplace because of their lack of support for a new member of management staff.

When she joined the employment in September 2022 as a new Manager of one of the retail stores, she was sent to another store for induction/ training for one month. During that month she received no structured formal training, no access/ login details to the internal computer systems and returned to work in her own store with very little knowledge of the role having not been correctly onboarded with the company. This was the beginning of a long series of a lack of support in her role as store manager by regional management over a number of months.

Despite being due to receive numerous one-to-one meetings with her regional manager and requesting support, guidance and general help in her role from the same regional manager, none of this happened on a regular basis. She would often go over a month without a visit from regional management which in turn led to her being unsupported and thus struggling to get the store team to understand her role as their store manager.

She raised this issue with regional management on multiple occasions but never received more than a cursory single visit or empty words via text, email or phone calls which were never actioned. It was during this time she was informed verbally by store staff that the in-store staff were under the impression she was a temporary manager as there was already a full-time manager for the retail store who was on long-term sick leave. She was never informed of this during her interview process or at any stage by regional management prior to being told by in-store staff. This effectively undermined her position as general manager for the store as she was seen by in-store staff as ‘temporary’. As a result of this she began to see behaviours from in-store staff such as ignoring her requests for them to perform basic tasks for which they are employed as well as general disregard for her position as the new store manager. This made her job increasingly difficult over the course of late 2022/ early 2023.

Multiple repeated examples of the bullying faced by the Worker in the workplace:

• Multiple instances of talking about her when I was not present in the room – overheard this on several occasions.
• Multiple instances of ignoring her talking or asking questions by aggressively typing or turning up music so she could not be heard.
• Undermining her work in front of others – purposefully using What’s App team group to undermine her authority e.g.: refusing to come to mandatory team meetings she organised etc.
• Harassment – Pressure to behave in a manner that is inappropriate and against GDPR guidelines and policies within company itself such as the team pressuring her to use their personal logins to drive their sales up while away from their posts. Constantly telling her I was “temporary” and telling me that the previous manager was better than me: “He just understood the way we work here” “Oh, our manager would log in and get us sales while we were on lunch break on our own logins”. She refused to log in to their logins to do this as she had been told this was against company policy by one of the auditing team staff. Constantly questioned about why she used her own logins to put sales through while on the floor.
• Verbal harassment: Constant Inappropriate age-related comments – “You’ve a lot of experience for someone who’s only 27” “I’m working here most of your life” “You’re only 27 you wouldn’t remember…” etc.
• Verbal abuse – When she first raised the issue to her line manager, she advised that I use her as a scapegoat “tell them that I said that I wasn’t happy” so when she was asked to raise an issue of policy breaking around uniform and tidy appearance to one staff members who had significantly long acrylic nails on; she advised that her line manager/regional manager had said her nails are too long to do her work, the Worker was made feel very uncomfortable and made for a hostile environment as vicious and inappropriate opinions were voiced of this team members hatred for [the line manager] and threatening to “slap her with these nails if she thinks I’m getting rid of them.”
• Undermining her in her position of store manager - Constant refusal to do tasks asked of staff members by her as their manager – Stock counts, damage counts and other such daily/weekly documents handed back not done at end of day, taking old stock down from attic to use for themselves such as headphones, speakers etc and despite being told not to do this, continued. When she asked the staff to do ad hoc jobs such as cleaning tasks or stock counts she would be told “that’s not my job” “I don’t want to clean up mess from a customer” “how am I supposed to get sales if I am busy with that” – leading her to have to stop her managerial duties to clean up or do additional tasks that the team could have helped with. On one occasion a customer had a sensory overload breakdown and had urinated on themselves while kicking and screaming on the floor, she asked the team member who was dealing with the customer to clean up the urine with a mop while she got the customer water and rang the guards as she was worried about the customers wellbeing and the team member said “no, I won’t be cleaning that.”
• Harassment – Highly inappropriate conversations on the retail floor about drug use “micro-dosing on mushrooms” “dropping acid at a concert” and derogatory conversation about women such as talking about other female staff members wearing “too much makeup” etc.
• Threatening behaviour – One staff member continually told other staff members and the Worker that he could hack into the CCTV both in store and in the Employer’s head office as well as their phones and see what apps were on the phone. He told other members of staff that he hacked into the assistant managers phone and found the gay dating app “Grindr” on his phone. The assistant manager is in a heterosexual relationship and they felt extremely uncomfortable that this behaviour was going on which made for a very hostile, degrading environment. Unwanted conduct relating to sexual orientation is a form of sexual harassment.
• Constantly threatened by [the line manager] when she went to address concerns in an informal manner she was told “Some managers are on pretty packets and if they can’t manage they need to get out of the way” and continually told “get on the bus or get off” in several alternative ways.
• Every day she went to work she was faced with behaviours from the staff that were repeated, malicious and intentional actions to belittle her, to humiliate her and to make her feel like an outsider. She has never been so disrespected and stripped of dignity by a team she was the manager of. The experience has damaged her permanently and she is still actively having panic attacks directly caused by the toxic work environment that the Employer allowed and enabled due to their lack of support, resources and understanding of what workplace bullying is. This is evident from their lack of following process set out in their own “Dignity At Work” policy.

Once these issues were raised with regional management and a brief disciplinary action was taken, she found herself in the position of having all store staff members turned against her. Rather than working as a team she felt she was walking into a hostile atmosphere everyday with comments being made by in-store staff about her lack of authority and intimidating behaviour from a male staff member. This intimidation led to the point where she had to have her assistant store manager in an adjacent room when dealing with this staff member on a one-to-one basis.

She received a threatening text from an in-store staff member while she was on sick leave after requesting that said member perform a basic task for which they were required in-store.

This all culminated in the Worker needing to go on work-related stress leave. She suffered severe panic attacks and extreme bouts of anxiety at the thoughts of having to go in and face an in-store staff team who were at this stage bullying and harassing her while in and out of the workplace. At this time, she lodged a formal complaint with the Employer relating to the behaviour of in-store staff members and also relating to the overall lack of support from regional management which in effect enabled the behaviour of in-store staff.  

The Employer’s response to this was less than satisfactory. They took seven days to respond to her request for assistance and advise lodging a formal complaint. It took her 2 weeks to structure and file the full complaint document due to her on-going anxiety over the situation. The HR department took three days to initially respond to her submitted formal complaints after secondary prompting by herself. It was 6 weeks before they returned with a formal resolution to the situation. This resolution disregarded her complaints against the staff almost entirely. All her submitted evidence was ignored and her claims were deemed baseless as I had a ‘lack of evidence’.

The Employer’s own bullying policy states “Bullying or harassment can be broadly characterised as behaviours which are unwanted or offensive to the recipient. It is the unwanted nature of the contact that distinguishes bullying, harassment and sexual harassment from friendly behaviour which is welcome and mutual. Bullying and harassment are defined by the impact of the behaviour on the recipient rather than the intention of the alleged perpetrator. The effect of the behaviour on the employee concerned is what is important. It is up to each employee to decide what behaviour is unwelcome, irrespective of the attitude of others to the matter.” This contradicts their response to her formal complaint. In the initial response to the formal complaint the investigation lead said that she felt that the text messages where I was indirectly threatened by one of the staff members was just this staff member was being respectful “I am satisfied that the sender of this text message was raising her concerns in a respectful manner, seeking out a conversation around same.”  

From here she appealed the resolution to her formal complaint which took 4 working days to consolidate and issue to the Employer. The Employer then took a further 8 weeks to respond. The response to the appeal of their resolution was to acknowledge how she felt in the situation, but their actionable resolution was effectively the same.

All of the above leads her to making this appeal to the WRC as overall she finds the Employer’s response to her being bullied and harassed by in-store staff members for whom she is the store manager, is wholly inadequate. To this day she is still suffering extreme work-related anxiety from this situation with occasional panic attacks, and she is unable to return to her position as store manager in that particular store. The Employer’s lack of support to her as a newly hired store manager enabled in-store staff to effectively bully her out of the role as store manager.

Summary of Employer’s Case:

On 13 November 2022, the Complainant emailed Ms S, Employee Relations Specialist, to discuss concerns with a rota request in store. The call was arranged and took place on 2 December.                    

On 21st December 2022, the Complainant raised concerns regarding a potential data breach involving a Retail Associate in the Waterford store. This was subsequently fully investigated by the Respondent.

 On 26 February 2023, the Complainant emailed Ms S to request a call to discuss concerns with her manager. The call was arranged and took place the following morning.   After the call, Ms S sent the Complainant EAP details and internal polices for raising concerns. 

On 28 February, Ms G, HR Business Partner, contacted the Complainant to arrange a follow up call.  

On 1 March, the Complainant, Ms S and Ms G have a call to further discuss the Complainant’s concerns and proposed next steps for resolving. After the call Ms S sent the Complainant an email suggesting ways to move forward and asked the Complainant to contact her when she had decided how she wished to proceed. 

On 6 March, the Complainant contacted Ms S and Ms G to arrange another meeting. The call took place with the Complainant and Ms G that day. The Complainant discussed concerns she had from over the weekend and after the call sent on a GP medical certificate certifying her as unfit for work for 14 days. Later that evening, the Complainant emailed Ms G and Ms S further outlining her concerns.

On 8 March Ms G acknowledged receipt of the email and GP cert and outlined that she will be in touch in two weeks (following the Complainant’s certified sick leave) to discuss the Complainant’s concerns further. 

On 9 March the Complainant emailed Ms G with further concerns and requested clarification on action taken by Company. 

On 13 March, Ms G requested the Complainant to submit details of her grievance and advised that the Company can then initiate formal investigation and sent copies of the Sickness Absence Policy and Grievance Policy. 

On 19 March, the Complainant responded to Ms G and submitted an updated sick cert and outlined that she would share details of grievance. 

On 30 March, the Complainant submitted two formal grievances to Ms G and Ms S and a further medical certificate certifying her as unfit for work. 

On 4 April, the Complainant contacted Ms G and Ms S to request an update on her grievance. 

On 4 April, Ms G responded to the Complainant to acknowledge her email and provided on update on the process.

On 5 April, the Complainant responded to Ms G with further concerns and requested clarification regarding her sick pay.  Ms G responded later that day with the following:

“Thank you for your email. I can confirm you first raised your concerns regarding your Commercial Sales Manager (CSM) with us on 27th Feb ’23. We had been trying to work with you in order to resolve things informally, and had a further meeting with you on 1st March 23 to discuss possible ways of informal resolution, which you wanted to take time to think about. Please note as per the grievance policy, and as standard in these cases the company will always try to resolve these matters informally. Some suggestions were made to you in order to look at ways in which we could help resolve these matters with your CSM however you later advised that these were not an option and that you intended to proceed with a formal complaint. Following this, on 6th March 23, you raised an issue with regards to a staff member accusing you of age discrimination and confirmed this would form part of your grievance also. I note that we shared full details on how to proceed with a formal complaint on 27th Feb 23, furthermore I note that it was on 31st March 23 that we received your formal grievance/desired outcome. As advised, this will be handled within the formal grievance processes. I understand your desire for a quick outcome on this however in order to follow fair procedures and ensure all parties are fairly treated an investigation needs to take place. It is not at the company’s request that you remain on sick leave whilst the investigation process is managed and we would welcome you back should you wish to return. I have attached the Sickness Absence Policy for your information, this, along with your contract of employment advises on the number of discretionary sick days you are entitled to. As advised above, we are more than happy to welcome you back to the store and support you in your role whilst the investigation is underway. I appreciate you may decide against this and should you choose to remain on sick leave this will be unpaid given you have utilised your sick pay at this stage. Other options available to you are annual leave and unpaid leave”. 

On 6 April, Ms B, Business Relationship Manager for UK and Ireland, who was appointed to hear the Complainant’s grievance, invited the Complainant to a grievance meeting on 13 April and attached supporting documentation to be reviewed in advance including the Complainant’s grievance documents, the Grievance Policy, the Terms of Reference, and the official invite letter.  On 12 April, the Complainant responded to the invitation and declined to attend the meeting and requested that the investigation proceed based on her written complaints.  On 13 April, Ms B responded to the Complainant’s email and acknowledged that she did not wish to attend the meeting and advised that she would continue the investigation.  On 19 April, the Complainant referred this complaint to the WRC before the outcome of the investigation had concluded or been communicated to her.  On 24 April, the Complainant emailed Ms B and Ms M, Employee Relations Specialist, to request an update on the investigation. Ms M responded on 26 April to outline the timelines for the investigation. The Complainant responded on 28 April, outlining concerns with the timelines.  On 12 May, the investigation process concluded, and the Complainant was invited to a meeting to discuss the outcome. The Complainant declined to attend the meeting and requested the outcome in writing.  The Complainant’s grievances were not upheld for the reasons outlined in the Investigation Report. On 17 May, the Complainant submitted an appeal and HR responded to confirm receipt of same.  On 22 May, Ms K, Employee Relations Manager, contacted the Complainant to outline the appeals process and between 22 – 29 May, Ms K and the Complainant exchanged a series of emails regarding the process.

On 30 May, Ms EB, Business Affinity Manager, was appointed to hear the appeals process.  On 2 June, Ms K followed up with the Complainant to enquire if she will be submitting further evidence as part of her appeal. On 12 June, the Complainant responded to advise that she was gathering evidence and would send it on.  On 15 June, the Complainant submitted evidence as part of the appeals process.  On 9 July, the appeal process concluded, and the Complainant’s appeal was not upheld. On 18 July, Ms G contacted the Complainant to discuss engaging on the recommendations set out in the report.  On 19 July, Ms G contacted Ms K to provide an update on the recommendations set out in the report. To date, the Complainant has remained on certified sick leave and has refused to engaged in the recommendations issued.

The Complainant's complaints were investigated in line with full and fair procedures and the rights of natural justice were afforded at all times. The Complainant was treated fairly and reasonably at all times and was offered the right of representation throughout the process. 

The Complainant declined to engage in meetings and requested the process to be completed and issued in writing which the Respondent complied with. The Complainant has refused to engage in any of the recommendations determined in the outcome, despite numerous requests.

The Complainant submitted her formal grievances to the Respondent on 30 March 2023 and referred this complaint to the WRC on 19 April 2023, before the outcome of the investigation was completed or communicated to her and in advance of fully exhausting the Respondent’s procedure. The Respondent has a comprehensive grievance policy and procedure which the Complainant’s complaints were fully processed in line with. Furthermore, the Policy and Procedure fully complies with SI146 Code of Practice on Grievance and Disciplinary Procedures.

The role of the Adjudication Officer in an IR referral is to “investigate any trade dispute referred to him.. and shall, unless before doing so the dispute is settled, make a recommendation to the parties to the dispute setting forth his opinion on the merits of the of the dispute” (Section 13).

We respectfully submit that this does not allow the Adjudication Officer to make specific findings as to what they consider the outcome of an internal investigation or grievance should be; rather their role within an Industrial Relations hearing is to assess whether the process conformed to the general principles set out in the Code of Practice on Grievance and Disciplinary Procedures (SI146 of 2000). Respectfully, it is not the function of the Adjudication Officer to re-investigate or to form an opinion as to whether the Respondent was objectively correct in their conclusions; rather the role is to establish if the Respondent acted fairly in its dealings with the Complainant.

The Respondent wishes to refer the Adjudicator to the IR case (ADJ-00030334 A Personal Assistant v A Trade Union) where the adjudicator stated the following in his recommendation; “The jurisdiction of an Adjudication Officer under this legislation is somewhat constrained. It is essentially an oversight role to ensure that a worker’s rights have not been breached and to seek to apply equitable (in the colloquial sense) remedies where that will be of assistance to the parties. The Adjudicator has no role in substituting their decision for that made at the level of the workplace in the absence of some serious error in the processes. There is no evidence that the respondent failed to follow fair and proper procedures in the course of processing the grievance, only that the procedures applied failed to produce an outcome acceptable to the complainant.”

On this basis, the complaint failed, and the Adjudicator recommend that the complainant accept that the matter had been fully and fairly processed to a conclusion. Similarly in this instant case, at no stage was there any deficit in the procedures followed. Furthermore, the Respondent believes that it has been fair and reasonable in its dealings with the Complainant.

The Complainant has made various allegations regarding a lack of support and requests for HR to address the alleged systemic bullying behaviour. The findings and conclusion in the report sets out in extensive detail, the support that was provided to the Complainant and the rationale for determining that the complaints were not upheld.

The Respondent respectfully requests that the Adjudication Officer finds that the Complainant’s claim under the Industrial Relations Act fails for the reasons set out above as they have been treated fairly and reasonably in all the circumstances.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.  I recommend that the parties engage in a dialogue to resolve the matter either by transfer or mutually agreed parting of the ways from the employment.  In the meantime, as a gesture of goodwill, recognising the harshness of the impact of loss of earnings during the long process, I recommend that the Employer offers the Worker a compensatory sum of €5,000.  

Dated:   25/October/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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