Worker

Employer

Anonymised Parties

A Worker

Vehicle Sales Company

Representatives

Caoimhe Ruigrok BL instructed by Graham Kenny Eversheds-Sutherland

Éinde O'Donnell A&L Goodbody LLP

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 - 00001393

15/05/2023

The Worker was a Managing Director with the Employer at the material time he submitted the dispute to the Workplace Relations Commission (WRC) 15 May 2023, alleging that a bullying complaint which he raised against two fellow directors was not appropriately dealt with, primarily by delay, by the Employer. The Employer denies the claim and makes a preliminary point that I should only deal with matters prior to the dispute submission date, which I accepted. 

The Worker made a complaint regarding bullying and harassment in August 2022 against 2 co-workers, who were fellow directors.  This was sent to the HR Manager (his brother). Given the connection, the HR manager recused himself and appointed an outside investigator Company X. Company X  began an investigation and when they contacted the two respondents (Directors A and B), they claimed that firstly  they would not participate as  they believed that  Company X  had previously advised the company, (This was found to be an  an incorrect assumption).  Secondly,  the directors  stated that under company governance rules (only in force since May 2022) the board must approve outside advisors. The Worker submits It should be noted here that the governance rules had not been communicated to the HR Manger at the point of Company X appointment. They notified the board on 29  August 2022  about the complaint and their position to not engage.

 On 6 September 2022 a board meeting was called for 13 September, at which it was decided that advice would be requested from the company legal advisors regarding the appointment of Company X. The Worker claims that Company X had already concluded their investigation at this point. Company X were contacted on 13 September and instructed to cease all investigations. The Worker submits that at this meeting Director C (Chairman of the Board) was instructed to carry out investigation into the claims. Despite numerous emails from Director C   between September and November 2022, no progress was made.

 On 15 November a board meeting was called to appoint an investigator. The Worker claims that at this meeting a Director raised a query regarding the fact that  he was aware that both suggested investigators had had phones calls with the company solicitors for over 1 hour each. He was of the opinion that this might prejudice the results of the investigation.

A new investigator was appointed in February 2023.  The Worker  had initial contact with the investigator regarding data protection. The Worker claims that his initial complaint, which contained sensitive data, was not only shared by the two respondents with the board but also by one respondent with two family members outside the company. The Worker raised a complaint with the Data Protection Commissioner (DPC).  

When the investigator had satisfied the Worker   as to his  data protection, the investigation began. He was interviewed by the investigator on April 24th, 2023. He  agreed meeting notes and provided the investigator with all necessary documentation by 4  May  2023. On 8  May  the investigator informed the Worker that one respondent had requested time to respond. The Worker replied to the investigator that while additional incidents had been added to the allegations since the original complaint in August 2022, both respondents were well aware of the allegations. The Worker submits he was informed on 12 May that once again both respondents had been in contact with the investigator and said they were both unable to meet due to various reasons, until late June 2023.

The Worker submits that the company allowed the matter to drag on because of other legal proceedings.

The Worker submits that due to the sharing of his personal sensitive information with the entire board, they were aware of the effect this had on him. He claims he have lost considerable weight and had to seek professional counselling along with various forms of medication.

The Worker submits that the Employer did not comply with S.I. No. 674/2020 - Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 and the Employer’s own procedures, by not facilitating a prompt investigation and furthermore that sensitive confidential matter relating to the investigation was not kept confidential by the Employer.

The Employer submits that the Board of the Company met on 6 October 2022 and the bullying complaints by the Worker were considered for the first time.  The Employer submits that the Board decided it would be procedurally unfair to rely on adverse findings by Company X into the bullying complaint against one of the respondent directors (Director B) in circumstances where these findings were reached without any input from the director in question. Mediation was suggested to the Worker, but it was rejected.

The Board met again on 28 November 2022 where Director C sought authorisation from the Board to commission a new investigation to be conducted by an independent professional investigator., in accordance with the Employer’s Dignity at Work Policy. Director C was of the view that both complaints raised by the Worker should be reinvestigated and not just the Worker’s complaint against director A, notwithstanding Company X had not upheld the Worker’s complaint against Director B. The Employer submits that it was not agreed to appoint a new external investigator at the Board meeting as one of the Director’s, (being the Complainant’s father) raised objections to this course of action. The Employer submits that because of further objections by the Complainant’s father, an investigator was ultimately confirmed on 25 January 2023, who was formally appointed on 1 February 2023.  

The Employer submits that there was further delay caused by a data protection issue, raised by the Worker, and the investigation ultimately began on 16 February 2023. The Employer submits that this delay was compounded by further allegations being made to the investigator on February 20. The Worker met with the investigator  on 24 April. The Employer put the case that that due to periods of annual leave Directors A and B Could not meet with the investigator until late June 2023. 

The Employer submits that at no stage did Directors A and B raise any issues in relation to purported delays in the investigation process. The Employer contends that where issues of delay are raised, it is usually the respondent to an investigation who raises concern with the delay given the prejudice that can be suffered by an accused person the longer a HR process goes on. The fact that no such complaints were made in this case speaks volumes and, the Employer submits, is evidence that the reasons for the delay were largely outside the control of the company.

The Employer accepts that there were some delays at various points in the process but that the Company were not culpable for same rather it was the Worker and his father who were responsible for some of the delays.

The Employer submits it went to great lengths to have the bullying allegations raised by the Complainant properly investigated in a procedurally safe and robust manner in those two independent investigators at considerable cost, were engaged by the company, the company chose to have all complaints re-investigated and were ensuring that all allegations, including later ones, would be investigated.

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

S.I. No. 674/2020 - Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (“Code of Practice” states: 

The investigation should be governed by terms of reference which should include the following:

·       The investigation will be conducted in accordance with the employment’s Anti Bullying Policy which should reflect this Code of Practice.

·        An indicative timescale for its completion - this timeframe should be proposed, and its rationale explained.

·        The scope of the investigation, sets out the procedure to be adopted for findings of fact related to the complaint and a statement that the investigator will consider, based on the facts before them whether the behaviour(s) complained of, on the balance of probabilities, have occurred.

·        Confidentiality of the process should be emphasised to all concerned.

·       All parties to the process have a responsibility to participate without undue delay in any investigation initiated in response to an allegation of bullying.

I note that the Employer’s procedures generally mirror the Code of Practice and I put a particular emphasis on the common provisions to deal expeditiously with complaints and compliance with the proviso of confidentiality. However, in this case I heard no account from the Employer that time limits had been set for investigation nor was it ensuring that all parties were urged to participate without undue delay. The practice described to me suggested that the opposite was the case. The Board seemed to be fully aware of details of proceedings and the time limits, if any, were stretched out by the timing of the Board meetings. Furthermore, and rather unusually, the Employer seemed to be quite satisfied with the purported nonparticipation of the two directors in the investigation for what can only be described as unusually elongated leave periods in 2023. I was not satisfied that the Employer in this case was looking for an expedited outcome. There might have been some delays attributed to the Worker, but in the greater scheme of things, it was clear to me that the Employer was culpable for the delays and the breach of confidentiality which made the process patently unfair.

Industrial Relations Act 1969, Bullying.