Worker

Employer

Anonymised Parties

A Worker

A County Council

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 - 00000617

02/09/2022

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

IR - SC - 00000618

02/09/2022

The worker states that he made a complaint on 26 March 2020 under the Equality and Diversity and Dignity at Work Policy. The complaint related to bullying/harassment and victimisation by Mr C, the General Services Supervisor and by Mr B, District Engineer from January 2019 to the date of his complaint. The worker states that during this period, he had been removed from gritting duties and had been left working alone carrying out sweeping duties, working on the side of the road with inadequate equipment and no access to the canteen.

The matter was dealt with on an informal basis by the employer and the worker claims that the employer tried to get him to agree to a transfer which the worker would not accede to. It was submitted that the matter ultimately went to formal investigation. The worker states that the Outcome of the Investigation report was that his complaints were not well-founded. The worker states the report also made a recommendation that he be transferred to a different section and receive some training in how the Dignity at Work policy applies to his behaviour.

The worker states that he had not asked for or consented to a transfer. He submits that any finding of misconduct against him arising from his complaint was procedurally and substantively unfair.

The worker submits that the Investigation Report was not in accordance with fair procedures, in that he did not have timely access to documents, a witness he requested to be called was not agreed to by the investigator. He further states that findings were made against him which were not permitted under the Terms of Reference and that the report was irrational in its findings. The worker states that he made an appeal and Ms K, Director of Services determined same. However, his appeal was not upheld.

The worker is seeking a declaration that the process was unfair and redress in the form of  compensation.

The employer states that the worker is employed as a general operative. It states that on 26 March 2020, the Council received a formal complaint under the Dignity at Work policy from the worker against his line manager and the district engineer. The employer states that at the material time, the country was entering its first lockdown due to the Covid pandemic. The employer states that emails were exchanged in relation to the complaint and a virtual meeting  took place online on 12 March 2021 with the District Administrator Mr F, the worker and his union representative in an attempt to deal with the complaints informally. Also in attendance were the two employees which were subject to the complaint.

The employer states that following this meeting, on 15 March 2021, the worker’s union representative emailed Mr F and requested that given that the meeting did not manage to resolve the issues that the complaints be dealt with by way of formal investigation under the Dignity at Work policy. The employer states that it commenced the formal process and on 5 July 2021, Mr M (retired City Manager) was appointed and all parties were notified of his appointment. The employer states that on 28 July 2021, the terms of reference setting out the scope of the investigation were circulated to all parties. The employer states that between 1 October 2021 and 11 January 2022, interviews were held by the investigator with all parties and also with witnesses identified during the process.

The employer states that on 15 December 2021, records of 7 meetings and 1 response were sent to the complainant in accordance with item 9 of the terms of reference. It states that on 17 December, an additional note received from Mr C was forwarded to the worker. The employer states that on 20 December 2022, the union official requested additional time to go through the notes on behalf of the worker. It was submitted that this additional time was granted with the deadline for submissions extended to 31 January 2022 as requested. The employer states that on 27 January 2022, a record of the meeting with Mr Mc on 11 January 2022 was sent to the worker. The employer states that all notes from the interviews were shared with the worker and the other parties to the complaint and they were given the opportunity to respond in writing. The employer states that the worker submitted a response on 31 January 2022 and the employer reverted on 31 January 2022 and 1 February 2022.

The employer states that on 19 May 2022, it received the report from the investigator and a copy was issued to the worker and the other parties to the complaint on 20 May 2022 via email and posted to the parties on 23 May 2022.  The employer states that none of the allegations made by the worker were upheld. It submits that all parties were given 10 working days i.e. 3 June 2022 to submit any comments on the report and they were also given the option of submitting an appeal to the Chief Executive by the same deadline. The employer states that on 3 June, the Chief Executive received an appeal in relation to the outcome of the investigation from the worker. On 9 June 2022 the Chief Executive appointed Ms. K (Director of Services) to manage the appeal.

The employer states that Ms K reviewed the twelve page appeal document received from the worker and identified four areas which were relevant to the Dignity at Work investigation i.e. (i) natural justice (ii) forced to engage in informal process (iii) complaints relating to the investigator (iv) demand for another investigation. The employer maintains that each of these were considered by Ms K, however the appeal was not upheld. The employer states that the worker received a full response to his appeal on 28 July 2022. The employer states that subsequently the worker submitted a claim to the WRC alleging that the investigation was “inadequate and not in accordance with fair procedures” and that “evidence was relied on that was not furnished to the complainant”. In the claim, the worker further alleges that the appeal process was incorrect as was the decision to move him to a different section.

The employer asserts that the worker submitted a complaint to it and same was investigated appropriately under the Dignity at Work policy. The employer states that it attempted to deal with the issue informally in the first instance. However the worker subsequently requested, through his union official, that the matter be formally investigated. The employer duly appointed an external investigator. The employer states that the name of the investigator was notified to the worker and no objection was received. The employer submits that terms of reference were established and circulated to the relevant parties and similarly, no objections were received.

The employer asserts that the worker was interviewed by the investigator and had the support of his union official at that meeting. It states that the investigator met with all the relevant parties including witnesses. All parties received notes of their interviews and were given an opportunity to comment on same. The employer states that all comments received were shared with the investigator. It states that the investigator included all this information in his report once it was received and this was circulated to all parties at that stage and they were afforded the right to comment on the full report at that stage.

The employer states that the investigation did not uphold the worker’s allegations against his line manager and the district engineer. The employer states that in the course of his investigation, the investigator formed the opinion that the working relationship between the worker and his colleagues was irretrievably damaged and gave a recommendation that the worker be moved  to another section of the Council. The employer states that the investigator noted that the existing situation was unsatisfactory for all parties and this was the basis for his transfer recommendation. He further stated that he was concerned by the worker’s behaviour towards his work colleagues and recommended that “he receive some training in how the Dignity at Work policy applies to his behaviour”.

The employer states that the worker was given a right of appeal to the Chief Executive and the worker duly exercised this right. The appeal was carried out be the Director of Services who was not involved in the process up to that point and she considered all matters relevant to the investigation. The Director of Services did not uphold the worker’s appeal. The employer refutes any allegation that the investigation process was unfair or inadequate. The employer maintains that all information received by the investigator was provided to the worker when the investigation report issued to him.  The employer states that when it reviewed the investigation report, it was evident that there had been a fracturing of relationships. It states that once the appeal process concluded, the employer had a duty to act on the investigation report. The employer states that there was no finding of bullying against the worker’s line managers; however it was clear from the report and the witness statements that there was a consistent and common perspective of difficult working relationship between the worker and all of his colleagues.

The employer states that on the basis of the information established in the investigation, the employer was of the view that a continuation of the fractured working relationship was not a sustainable option based on the findings of the investigation. The employer states that it could not ignore the outcome of the report and its findings. The employer states that it was evident that the working relationships were broken and it had to consider what was the appropriate option taking into consideration three elements (a) the needs of the complainant (b) the needs of his colleagues (c) the obligations on the respondent as it relates to all of its employees and the provision of a safe workplace.

The employer states that having given careful consideration to these elements, it came to the belief that there were two choices i.e. transfer the worker to another area or transfer all of his colleagues to another area. The employer chose to transfer the worker and notified him of same on 18 August 2022. The worker was transferred to another location, a recycling centre on 15 September 2022. The employer states that it has a duty of care to all of its employees including the worker and having reviewed all aspects of this matter, it determined that, in meeting this obligation, it was more appropriate to redeploy the worker under his existing terms and conditions. The employer states that the worker’s home is closer to the location he was transferred to.

The employer submits that the principles of natural justice and fair procedures have been applied, the worker has been represented at all times by an experienced trade union official. It states that at all times the worker has been advised about the procedure and was provided with all documents which were to be relied upon in the course of the investigation. The employer asserts that the procedure conforms to the code of practice under the Industrial relations Act 1990 and S.I. 146/2000 and the principles of natural justice.

I have considered both the written submissions and oral submissions from the worker and the employer. Having carefully examined those submissions I find that the actions of the employer in relation to the manner in which it conducted the investigation together with the outcomes of the investigation were reasonable in all of the circumstances.

I find that the worker’s transfer to a different section was a reasonable and measured decision based on the outcome  of the investigation process.  I find that natural justice and fair procedures have been applied. I find that the procedures followed by the employer conforms to the code of practice under the Industrial Relations Acct 1990 and S.I. 146/2000.  I find that the worker’s claim and request for compensation are not well-founded.  Therefore, I do not recommend in favour of the worker.

Industrial Relations Act