Worker

Employer

Anonymised Parties

A Worker

A Poultry Meat Processor

Representatives

Stephen Moran BL, instructed by Anthony Collier of Collier Law Solicitors

Ellen Walsh,  Peninsula

Act

Dispute Reference No.

Date of Receipt

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

CA-00046607-001

09/10/2021

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

CA-00046607-002

09/10/2021

These complaints are (1) failure by Employer to adhere to its own bullying and harassment procedures which led to the Worker being disciplined and sanctioned by way of a Final Written Warning and (2) failure to respond to the Worker’s request to appeal the Final Written Warning following a disciplinary process.

The Worker commenced work as a general operative for the Employer, a poultry meat processing business, in January 2019.

In March 2019 the Worker became involved in a dispute with a fellow worker. She was bullied and harassed by this person. She brought her concerns to the attention of her manager and thereafter to other managers and to HR. She was bullied and this impacted other relationships she had with other colleagues. The workplace became a place of dread for the Complainant. She raised a grievance in March 2019. The problems were not addressed and continued. She raised a formal grievance in August 2019, which was not upheld.

Arising from a further incident in November 2019 the Complainant raised a grievance against her colleague and that colleague in turn raised as grievance against the Complainant. The Employer commenced a disciplinary process into the actions of both employees and following this process the Complainant was given a Final Written Warning for her misconduct.

The first IR complaint is that there were defects in the Employers grievance and disciplinary process that commenced in March 2019, including that when she alleged bullying under the company procedures, she should have been physically separated from her bully but was not. They remained working together, which led to subsequent bullying conduct, further dispute, a further grievance, a disciplinary process and a final written warning.

The second IR complaint is that the Worker appealed the decision in November 2019 to give her a Final Written Warning, but no appeal took place.

First,  the Employer contends that the IR complaints are in respect of events that allegedly occurred in 2019. As the dispute was referred to the WRC on 9 October 2021 these are outside the time limit as they were brought outside 6 months from the date of the alleged breach.

Second,  the Employer contends that the IR complaints have evolved as this dispute has proceeded and are unclear. On day 2 the Worker’s representative identified that the IR dispute was about (1) the disciplinary process which led to a Final Written Warning and (2) defects in the bullying and harassment procedures.

On day 3 of the Adjudication hearing these changed to being (1) the failure to provide her with Company policies in her own language – albeit this was abandoned mid-hearing as it was being considered under the Worker’s discrimination complaint (2) that the Worker was not separated from her colleague in March 2019 (which the Employer denies) which was not in accordance with the Company bullying and harassment policy and (3) that following being issued with a Final Written Warning, the Complainant appealed that decision which was not responded to (which was denied by the Employer because while a further complaint was received it was not presented as being an appeal and no complaint  was raised about this alleged denial of an appeal until the WRC adjudication.)

The Employer contends that the changing nature of this IR complaint needs to be corralled into discrete IR complaints which the Employer is properly on notice of and can respond to.

With respect to the Worker’s evidence the Employer through its head of HR stated as follows:

1.      The Worker started work in January 2019

2.      The Worker made her first grievance complaint against her fellow employee in March 2019.

3.      At that point the Worker was not working alongside her alleged bully. Separation of the parties was not at issue and the reason that this was not raised at the time by the Worker (and it was not) was because they were not working together. While they worked in the same large production room, they neither worked on the same table or close to each other on the production line. The Employer denies breaching procedures on Bullying and Harassment.

4.      In the face of multiple grievances raised by the Worker from March 2019 and November 2019 the Employer engaged with each grievance and processed it in compliance with the agreed Union/Company grievance procedures.

5.      The Worker has not identified any defect within the grievance processes from March 2019- November 2019 and has not identified any defects within the disciplinary process undertaken by the Employer in respect of both the Worker and her colleague in November 2019.

6.      In the absence of a proven defect in the agreed procedures the WRC may not interfere with a disciplinary sanction.

7.      Following the issue of the final written warning, in November 2019 following a disciplinary process (which at all times complied with the agreed Employee/ Employer disciplinary procedures and in respect of which no defect has been identified) the Worker was offered a right to appeal the sanction. She was represented by her trade union representative at that time. She was advised by letter that if she wished to appeal the sanction that this was to be directed to an identified member of management within a time frame.

8.      No such appeal was received. A new complaint was received by the Worker’s manager directly (not through the Worker’s trade union representative who represented the Worker at the disciplinary hearing.) The complaint was a hand-written note which did not mention the word “appeal” and it was not directed towards the Appeals Officer.

9.      The onus was on the Worker to make it clear if she wished to appeal the Final Written Warning and the Employer cannot be blamed for not treating the note as being appeal when that was not clear, the content of the letter did not denote that it was an appeal and the alleged denial of her right to appeal was not subsequently raised by the Worker with management.  

10.   In failing to raise procedural defects to processes at the material time internally she cannot now raise it within the context of a WRC adjudication.

11.   The Worker is clearly unhappy with the Final Written Warning. However she has not identified any defect in the disciplinary process that led to this decision. The jurisdiction of the WRC cannot be to interfere with internal findings unless a policy or procedure has not been followed. The WRC is not an appeal body which can interfere with an outcome of a disciplinary process if the agreed process has been followed.

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

Firstly IR complaints are not subject to the 6 month time limit that applies to Employment Rights complaints. The preliminary application by the Employer that the WRC has no jurisdiction to consider trade dispute allegations in 2019 when the WRC dispute was made in October 2021, is not well founded.

Secondly the IR complaints brought by the Worker are a little unclear but taking the disputes as broadly as possible, to encompass the evidence of the Worker, her complaints appear to fall into two categories:  

1.      That the bullying and harassment grievance procedures were improperly applied by the Employer (which included not being separated from her bully in March 2019) and this ultimately led to the Complainant being disciplined and given a Final Written Warning.

2.      Her letter in November 2019 was an appeal of the Final Written Warning and this was not responded to by the Employer.

In respect of the first complaint I am not satisfied that the Complainant has pointed to defects within the Company disciplinary process that led to the Final Written Warning. The issue of separation of the Complainant and her colleague, according to the Complainant arose when she issued her first grievance in March 2019. But it was not until an incident in November 2019 that the disciplinary process was commenced against the Worker. There is no evidence that between March and November 2019 that the Worker requested to be separated from her colleague. Indeed there is no evidence that this was identified as a grievance at any point before the matter was adjudicated upon by the WRC. An IR complaint is required to be exhausted internally before it is referred to the WRC.

I find that the Worker has not identified a defect within the grievance process from March 2019 and in the disciplinary process from November 2019 which is capably of  vitiating the Final Written Warning. While the Worker gave evidence of a constant uninterrupted narrative of bullying that did not abate from March until November 2019 and indeed beyond, these allegations were investigated by the Employer in accordance with their policies and the alleged non-compliance (the alleged non-separation of the parties, which was not complained about at the time) did not cause the Final Written Warning to be issued. For these reasons I am satisfied that this complaint is not well founded.

In respect of the second complaint, the onus is on the Worker to exercise her right to appeal the Final Written Warning. I accept that she sent a hand-written note to her manager. I consider it to be relevant that she did not send it to the appeals officer, as she had been advised to do in clear terms.  I also consider it relevant that she did not use the word “appeal” in this note.  I accept however that having received this note the Worker could have been asked by Management to clarify what the status of this letter was and whether she intended it to be treated as an appeal or was it a new complaint and I find myself critical of the Respondent manager for not querying this with the Worker. But having received no response to what she asserts was a request for an appeal, because her intentions were not sufficiently clear in the note, given that she had a trade union representative to advise her and given that she did not subsequently raise that with management,  I find the Worker did not exercise her right to appeal in a way that the Employer understood that it was an appeal and while I am critical of the Employer failing to respond at all to her note, I am not prepared to extend that criticism to become a finding that the Employer denied the Worker a right of appeal. For this reason I am satisfied that this complaint is not well founded.