Worker

Employer

Anonymised Parties

A Travel Company Worker

A Travel Company

Representatives

SIPTU

 IBEC

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 - 00000659

12/09/2022

The complainant left her employment of fifteen years with the respondent; a travel company. following an exchange with her branch manager.  She reported it to senior management and requested intervention but was dissatisfied with their handling of the incident.

She was dissatisfied with the process which she says was flawed.

Initial attempts at senior level to address the interpersonal issue failed to take account of the serious nature of the dispute. 

The procedures throughout the subsequent investigation were flawed and caused further distress to the complainant despite her desire to have the matter dealt with decisively and for normal working relations to resume with her colleague.

The situation was entirely salvageable if senior management had tried to resolve the issue to the satisfaction of all concerned. In their failure to do so, they failed in their duty of care to the complainant and left both parties exposed with accusations of wrong-doing still unresolved.

It is unclear what steps the respondent would have taken to ensure a safe working environment had the complainant decided to return to work, but the complainant felt she had little alternative but to leave and eventually seek employment elsewhere.

On the morning of November 1st, 2021,the complainant was attempting to provide a quote for a customer. Her computer system had crashed and was recovering slowly so she agreed to have the information ready when the customer returned.

The store manager approached the complainant and congratulated her on a significant sale she had made on the previous Saturday. She then asked why the Trading Feedback had not been completed over the weekend, and whether another colleague had been too busy to complete the report. The complainant was unable to explain why the other employee had not done it and was then asked why she had not done it.

She reminded the manager that she had never done that particular job, a fact confirmed by the computer system, but she did volunteer to undertake the task in future if she could be shown how to do it. She reminded the manager that she had tried to do it once before and had done it incorrectly, but that she was quite willing to take it on if training would be provided.

The complainant regarded the manager's response as 'aggressive' as she questioned why the complainant had not learned how to prepare Training Feedback in her fifteen years in employment with the respondent. The complainant could only say that she had not, had never been assigned the task, and that the manager already knew this and expressed her dissatisfaction with the Manager’s tone.

The manager asked the complainant to join her in the back office. She was reluctant to initially but, having observed that the manager looked very tired she did so and began by asking what was wrong.

The complainant explained that she had been very hurt and upset by what had just happened and was anxious to know why her manager had reacted as she had, (assuming that she was distressed for some other reason). The manager, however, did not respond to that enquiry and remained very agitated which prompted the complainant to say that she intended to leave the premises as she was too upset to carry on. The complainant contends, and her recollection is supported by one of the witness statements that the manager responded by shouting that if she left, she need not come back.

The complainant went toher car where she became very distressed at how an ordinary morning in the office had become such an unpleasant experience. When she got home, she contacted the General Manager (GM) and advised her that she had left the premises and why.

The GM’s advice was to call her manager and speak to her directly. The complainant was uncomfortable with this suggestion as the exchange had become quite heated and certainly felt that a direct approach at that stage would have been unhelpful.

The complainant was always willing to have the matter addressed with minimal disruption or delay, but she did expect management to facilitate whatever communication would take place, and she did also expect that the manager would be willing to apologise for how she had behaved.

It remains the complainant's belief that she would have been back at her desk immediately, with relations with her manager restored, if either or both of those options had been taken. It appears that whatever communication took place between the manager and the GM did not result in her manager contacting the complainant, so no contact was made by either party at that time.

Approximately four days later, the complainant sent a text(unrelated to events) in error from her phone which prompted her manager to make contact. The initial conversation was positive with both saying they hoped the other was ok etc.

The manager reassured the complainant that she had not done anything wrong and that she knew it was not her responsibility to complete the Trading Feedback; this was consistent with the one-to-one review which had been carried out just prior to the incident and in which the complainant received an excellent report.

A difficulty arose, however, when the manager attempted to suggest that the complainant had misunderstood what she was saying a few days earlier and did not accept responsibility for her behaviour. She objected to having the incident characterised as a misinterpretation on her part and decided to report the incident to senior management officially, particularly considering the public nature of the criticism and the embarrassment it caused.

The findings from the initial grievance investigation were disappointing as they appear to find that both parties had been upset by what had occurred, and furthermore appeared to reinforce a manager's right to question employees.

The complainant was accustomed to the chain of command in her workplace and 15 years of punctual attendance, a flawless attendance and performance record and repeatedly exceeding targets would not suggest a difficulty on her part with fulfilling her responsibilities as an employee of the respondent or with her ability to respect management.

What she objected to in the incident described was the inaccuracy of the allegation made against her, and the tone in which it was delivered- neither of which should be confused with management's right to manage within the work environment. It does appear that the investigator somewhat missed the point.

The investigator did offer the option of mediation between the parties, and while there is always room for compromise from both parties in the case of an interpersonal dispute, a successful outcome by any means will generally require an acknowledgement on the part of the instigator that a different approach might have been more appropriate: this was not forthcoming from the manager and does not appear to have been recommended by the investigator or senior management.

Furthermore, it was unfortunate that the proposed 'mediator' was in fact a member of the internal management team whom, we assume, is not qualified to undertake a mediation process. Perhaps if the respondent had offered to retain the services of a qualified practitioner, the matter might have been resolved even at this point.

The complainant felt compelled to appeal the findings of the grievance (Appendix 4) on several grounds.

In the first instance, she regarded the ambiguity of the outcome as unhelpful in addressing the conduct which had caused her so much distress. The ongoing refusal to recognise the nature of the exchange between the parties did not create any opportunity to address the issue adequately and allow the parties to move on.

There were other issues however, including the failure on the part of the investigator to provide our member with witness statements, access to CCTV footage etc., in advance of her grievance meeting - advantages which she believes were afforded to the other party to the dispute - which denied her the opportunity to prepare adequately.

It is concerning also that the respondent's statement appears to have gone largely unchallenged by the investigator, despite there being some inconsistencies with other accounts. The investigator himself acknowledged that the CCTV footage appeared to support the complainant 's outline of events, but alternative interpretations appear to have been given equal weight.

The outcome of the appeal failed to provide any basis from which the complainant might be able to navigate a return to the workplace and by which normal workplace relations might be restored.

While it conceded that policy had not been applied correctly and therefore upheld some aspects of the appeal, the only remedy offered to our member was the option of mediation again-this time to be chaired by a manager from another part of the business who would not be familiar with either of the parties...but still not qualified as a mediator.

In short, the complainant, having found herself at the centre of a very uncomfortable situation, and despite her willingness to get back on track if the manager had simply been prepared to acknowledge that she had over-reacted and behaved inappropriately, was forced to initiate a formal grievance. Having placed her faith in that process, still optimistic about the potential for an acceptable outcome, she was very disappointed that the system proved inadequate for the task.

The initial confrontation was a turning point in her working relationship with the respondent, however, it was well within the grasp of the manager involved, and the senior management team, to have the issue addressed and resolved immediately.

The complainant was not attempting to prolong hostilities with her manager and, on the contrary, was concerned that her behaviour had been the result of some personal stress and was totally willing to accept her bona fides had she simply said she had been under pressure of some sort.

Notwithstanding the apparent reluctance on the manager's part to accept any responsibility for what had transpired, we believe in fact that inaction on the part of senior management has contributed significantly to the outcome. It was, in fact, their lack of insight and support which undermined her confidence sufficiently to convince her to remove herself from that work environment- a very significant move on the part of a long-standing and successful employee who needed to earn a living.

Finally, the failure of the internal process to progress matters left her feeling unsupported and vulnerable and appeared to eliminate any hope of a positive outcome. It certainly discouraged her return to work.

The actions of the manager and the reluctance on the part of that person to accept any responsibility were unfair. But senior management in the respondent bear the greater responsibility given their demonstrable lack of urgency in their handling of the dispute between the parties, and to the poor procedures which were applied throughout the formal process.

Not only has the complainant suffered significantly because of these factors, but we also believe that a recommendation which highlights their shortcomings in this case might serve to protect employees in future.

Following a disagreement which took place on November 1st, 2021, between the complainant and her store manager, the complainant left work and immediately went on sick leave.

On November 11th, the manager attempted to resolve the issue informally by phoning the complainant to discuss the situation, but there was no resolution.

The complainant subsequently raised a grievance on December 17th, 2021. The following day, the company confirmed receipt of the complainant’s grievance and an investigation meeting was organised for November 22nd, 2021 but had to be postponed and was re-organised for December 17th, 2021, at which she was represented by her union.

The basis of the complainant’s grievance was that, although she had received an apology in relation to the incident on two separate occasions, she wanted an apology specifically in relation to what the complainant believed had been inferred at the time of the incident.

It is also somewhat hard to believe that what appears to have been at the heart of this for the complainant was the manager suggesting to her that she may have misunderstood her!

In her submission she says that ‘she objected to having the incident characterised as a ‘misinterpretation on her part’. Perhaps, but she showed little tolerance for the possibility that this might be true, and even if it was not, it was capable of being resolved easily.

This led to the formal complaint.

An investigation meeting was held on December 17th, 2021, with her manager and witnesses were interviewed as part of the investigation on the same date.

The investigation was completed, and the outcome provided to the complainant on January 10th, 2021, which advised that the complainant’s grievance had not been upheld for the following reasons:

“There was an opportunity to resolve this in-store once you had both allowed some time for a ‘cooling off’ period”

“Both yourself and [the manager] have suffered upset and anxiety following the events of that morning’s discussion”

“I’m satisfied that [the manager] did not intentionally aim to cause any upset and in her role as manager is entitled to question the team concerning tasks not completed”

“[the manager] has attempted to resolve the situation through 1 to 1 conversations with you”

The outcome also acknowledged “a breakdown in the relationship between you and [the manager]” and on foot of this the company committed to organise.

 “mediation sessions chaired by a Manager not previously involved in this grievance case, in order to resolve and ensure a satisfactory outcome for both”, along with a “phased step by step plan for a return to work, ensuring a comfortable and happy working environment for the team”.

The outcome was appealed by the complainant: the appeal meeting was held on January 21st, 2022, and the outcome of the appeal provided to the complainant on January 28th, 2022, all in line with the company’s grievance policy.

The outcome of the appeal advised that the grievance had been part upheld, provided reasons and again, mediation was offered to “be arranged at a time that is suitable for you by an impartial person from within the business but outside of Retail and will be someone that does not know either yourself or [the manager]”

On March 1st, 2022, while the complainant was still on sick leave, not having returned to work since the incident nor engaged in mediation, she resigned with immediate effect.

The company carried out an investigation into the grievance in accordance with the complainant’s requests which was to investigate the complainant’s allegations.

In her interview meeting statement, the complainant alleges that [the manager] “screamed at me on the shop floor that I will never work for the company again or walk through those doors again.

However, [the manager] states in her investigation meeting statement that she said: “So that’s it you’re leaving?” to which the complainant replied “Yes, and I won’t be coming back” to which Her manager replied: “Fine, off you go and don’t come back’.

Her manager also confirmed that she felt “that I have already apologised” but that she “would have no problem sitting down to discuss again”. She also stated that she felt at this stage that the complainant “needs to apologise to me and recognise that she can’t talk to people the was that she did and react in the way that she did either”.

In the complainant’s version of events as documented in the meeting minutes, she states that she “took my bag and coat and she screamed at me on the shop floor that I will never work for the company again or walk through those doors again”.

The complainant also states that she told the General Manager that she “couldn’t go back, the negative vibe would kill me”.  However, in the investigation meeting statements from the witnesses, all confirm their surprise at this situation and claim their workplace has in fact the opposite to a “negative vibe”.

The complainant also states that “had [the manager} phoned me and apologised to me I would be back in work now”. However, Her manager had apologised on two occasions to the complainant and had furthermore shown how she also felt the situation warranted an apology from the complainant.

The outcome of the investigation was provided to the complainant on January 10th, 2022, and stated that the grievance was not upheld, and the reasons were provided to the complainant which included that:

“Both yourself and [the manager] have suffered upset and anxiety following the events of that morning’s discussion”

“I’m satisfied that [the manager] did not intentionally aim to cause any upset in this case, and in her role as manager is entitled to question the team concerning tasks not completed”

“[the manager] has attempted to resolve the situation through 1 to 1 conversation with you, but unfortunately this was not possibly as you both could not reach agreement for a satisfactory outcome”

“Interviews with the other team members present on the day could not confirm actual conversations that took place between you and [the manager]”.

However, in the outcome the company acknowledged a “breakdown in the relationship between you and [the manager]” and committed to providing mediation sessions, “in order to resolve and ensure a satisfactory outcome for both yourself and [the manager]” along with a “phased step by step plan for return to work, ensuring a comfortable and happy working environment for the team”.

The complainant appealed this decision on the basis that she was unaware if a customer’s statement had been included as part of the original investigation, she had not been afforded access to witness statements, the investigator had erred in process and conclusions, the outcome did not restore the necessary trust and confidence to enable her return to work, that the issue around compensation had not been addressed and that she had only been only afforded seven days to appeal the decision.

The appeal meeting was carried out by a Regional Sales Manager on January 21st, 2022. The outcome was provided to the complainant on January 28th, 2022.These were partly upheld with the issues around the witness statements, the process in relation to the CCTV and the customer interview being addressed.

However, her appeal in relation to her issue regarding trust and confidence was not upheld saying

“As you mentioned during the appeal hearing there had not been any incidents in the past that you haven’t been able to resolve and you agreed this was an isolated incident that I believe can be resolved with arranged impartial mediation by someone from outside of Retail” –. Again, the company reiterated that they were committed to arranging mediation “at a time that is suitable for you by an impartial person from within the business but outside of Retail and will be someone that doesn’t know either yourself or [the manager]”. The letter also asked that the complainant “contact me directly when you are ready” and “I will get the mediation arranged. Obviously the sooner we can get the mediation arranged the sooner we can get the situation resolved”

However, the complainant declined to engage in mediation and instead handed in her notice on March 1st, 2022. We are at a loss to understand how the complainant believes that what is essentially a misunderstanding could make a “return to work impossible”.

 Further, directly after the incident, the complainant immediately went on sick leave which makes it difficult to understand how she believes the company showed “a lack of support.

The company did not show bias towards or against one party or the other as they had an obligation to remain impartial. Both sides of the story needed to be considered during the investigation and this was done.

The manager provided two apologies; the complainant did not provide any yet is insisting on a particular type of apology which has its foundation in the belief that he manager is obliged to provide an apology which absolves the complainant of any responsibility for the escalation of the incident or the incident itself; if the company were to request this, that would indeed by biased against her and unjust, particularly in light of the information revealed through the witness statements.

Further, the issues which had been raised in relation to the process of the investigation around the provision of statements and documentation were dealt with appropriately during the appeal process. The investigation itself was not inadequate in that all parties involved were provided the opportunity to state their case, all witnesses were interviewed, and all evidence taken into consideration.

Legal submissions were made and decisions of the Labour Court in UDD2317 and a WRC  Decision ADJ-00030746 were submitted

It is the respondent’s position that this situation could have been resolved through an informal process by the complainant engaging in mediation, as was offered by the company as part of the outcome of her grievance.

This issue related to one isolated incident. The complainant’s manager apologised on two separate occasions to the complainant. However, the complainant was seeking a particular type of apology and seems to have been intent on refusing to return to work without receiving this. She also refused to engage in mediation which may have provided this opportunity or at least the opportunity to understand that her colleague also suffered upset at what was one isolated incident in which both parties were involved.

We are therefore at a loss to understand how the complainant believes that what is essentially a misunderstanding could make “a return to work impossible”

Further, directly after the incident, the complainant went on sick leave which makes it difficult to understand how she believes the company showed “a lack of support.

The “lack of …correct procedure” was addressed in the complainant’s appeal. The respondent took into consideration that this was an isolated incident, that the witness statement confirmed the workplace atmosphere was not in any way negative, that the situation seemed to have escalated very quickly and that the previous working relationship between both the complainant and [the manager] had been very good.

Although the complainant states that “the serious nature of the exchange was not acknowledged or recognised” the respondent would argue that it was more than reasonable to have expected a cooling-off period could result in both parties being forthcoming in discussing the issue and resolving it amicably. However, although [the manager] did apologise twice to the complainant, the complainant refused this apology and it is this which led to the complainant lodging a grievance; in other words, it was through the complainant’s refusal to have this issue dealt with in an informal manner (which would have been appropriate in the circumstances) which led to her formal complaint.

The respondent has demonstrated that it has acted appropriately at all times in addressing any concerns the Complainant raised regarding her employment. On receipt of the Complainant’s written complaint, the Respondent initiated an investigation which was followed through, the outcome provided to the complainant and the process subsequently provided for an appeal. The complainant however did not give the Respondent an opportunity to engage with her to resolve any outstanding concerns. She refused to engage in mediation, as provided for in the outcome of her grievance with a view to reaching an agreement on how to move forward within the workplace.

A phased return to work was also provided for as the outcome of the complainant’s appeal and neither this nor mediation were attempted by the complainant who chose instead to resign with immediate effect.

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

The broad narrative of events in this complaint is not in dispute, although some of the details are.

There was a disagreement on November 1st, 2021, between the complainant and her manager. The complainant left work and immediately went on sick leave. (this is one element of the narrative where important details of what was said are disputed).

On November 11th, the manager telephoned the complainant to discuss the issue, but this did not resolve matters. The complainant then submitted a grievance on December 17th, interestingly almost five weeks later.

The respondent organised a grievance investigation meeting, initially for November 22nd, 2021, which had to be re-organised for December 17th, 2021, and at which she was represented by her union.

According to the respondent, the basis of the grievance was that, although she had received an apology in relation to the argument on two separate occasions, she wanted an apology specifically in relation to what the complainant believed had been inferred at the time of the incident.

The investigation concluded reasonably quickly on January 10th, 2021 but did not uphold the complainant’s grievance for a number of reasons, essentially reflecting the relatively low level of seriousness of the issue, the lack of any intention to cause upset to the complainant and the inadequacy of her own contribution to a resolution.

Therefore, we can see two aspects to this complaint.

The first relates to the substantive incident which has given rise to the complaint and its immediate aftermath. To say that the resources expended on dealing with it are somewhat disproportionate to its gravity would be putting it mildly, despite the description of it in the complainant’s submission as being of ‘a serious nature’.

This brings us to the second aspect of the matter which is why those efforts failed to bring about a satisfactory resolution.

I propose to deal with that first, as a critical element in cases under the Industrial Relations Act is how the procedures at the level of the workplace were applied. This normally involves scrutiny of the respondent’s actions primarily, but the actions of both parties deserve attention here.

To deal with the company’s initial handling of the matter, I can find no basis for criticism. It acted properly in its handling of the matter.

The complainant submits.

Initial attempts at senior level to address the interpersonal issue failed to take account of the serious nature of the dispute.

The procedures throughout the subsequent investigation were flawed and caused further distress to the complainant despite her desire to have the matter dealt with decisively and for normal working relations to resume with her colleague.

The situation was entirely salvageable if senior management had tried to resolve the issue to the satisfaction of all concerned. In their failure to do so, they failed in their duty of care to the complainant and left both parties exposed with accusations of wrong-doing still unresolved.

As already noted, there is a degree of hyperbole in describing this, a relatively minor breakdown of workplace relations, as a ‘serious dispute’.

It was little more than a normal low-level conflict arising from a combination of (at worst) insensitive communication on the part of the manager (and I make no finding that it was) and an oversensitive reaction on the part of the complainant. This was characterised by the respondent in the more general terms of a ‘breakdown in communication’, which is a fair description.

I do not accept that the respondent’s handling of the matter was flawed and no specific evidence for this was offered during the hearing.

It is totally insufficient criticism of the processes of an investigation that a party is ‘disappointed’ with its outcome, and this goes nowhere near grounding an allegation that a process was flawed.

This is not to diminish its impact on the complainant who was clearly very upset about the matter but the challenge of resolving it was not a great one.

However, a perfectly properly conducted investigation concluded speedily with the following outcome proposed.

It is the Respondent’s position that this situation could have been resolved through an informal process by the complainant engaging in mediation, as was offered by the company as part of the outcome of her grievance.

So why did this not happen?

The complainant refers more than once to, for example ‘the situation [being] entirely salvageable if senior management had tried to resolve the issue to the satisfaction of all concerned’.

But, in due course this is exactly what the respondent sought to do and was, in fact, prevented from doing so by the actions of the complainant.

In the quotation above, the complainant may be referring to the immediate aftermath of the event but, for the respondent to have done as she demanded at that stage would have required her version of events to be simply accepted without proper inquiry. Clearly, this would not have been possible, nor fair to the other party.

I need to distinguish between the complainant and her representative trade union for the purposes of this next point. The following appears in the complainant’s submission, but this was clearly authored by her union.

The investigator did offer the option of mediation between the parties, and while there is always room for compromise from both parties in the case of an interpersonal dispute, a successful outcome by any means will generally require an acknowledgement on the part of the instigator that a different approach might have been more appropriate: this was not forthcoming from the manager and does not appear to have been recommended by the investigator or senior management.

Furthermore, it was unfortunate that the proposed 'mediator' was in fact a member of the internal management team whom, we assume, is not qualified to undertake a mediation process. Perhaps if the respondent had offered to retain the services of a qualified practitioner, the matter might have been resolved even at this point.

It is difficult to know where to begin with this.

The suggestion that ‘a successful outcome [in mediation] will ‘generally require an acknowledgement on the part of the instigator that a different approach might have been more appropriate’ is such an erroneous view of mediation that it is scarcely credible that it could appear in a submission drafted by the largest trade union in the country.

The view that a party to mediation might be required to engage following acceptance by them in advance that they have been at fault is so misguided that, yet again it is scarcely credible that it could have been uttered in a formal submission.

Admittedly, the outcome of an investigation may influence the approach a party might themselves choose to take within the mediation, but this is entirely a matter for that party within the confidential, ‘sealed unit’ of the mediation and should not be built into any pre-conditions for the mediation to take place.

The somewhat condescending ‘while there is always room for compromise from both parties’ further betrays a quite mistaken understanding of the essential neutrality of the mediation process and suggests that the Union believed that unless the complainant was enabled to enter the process with an advantage over the other party it would not do so at all.

That is not the nature or purpose of mediation, and no investigator (or senior manager) should ever go any further than simply recommending mediation, where it is felt it might be helpful. 

It is a confidential, without prejudice dispute resolution process in which the parties, with the assistance of the mediator, resolve their differences without pressure from any external source, (including pre-conditions) or pre-judgement of the issues that have been referred to the mediation for resolution. To put it in colloquial terms, all parties enter the process on ‘a level playing pitch’.

As for the second aspect of this quotation, I see no reason to object to an initial conflict resolution process involving a member of the internal management team with the relevant general skillset, unless there were substantial reasons not to do so that went beyond the simple fact that they were ‘internal management’. 

There is a contradiction, in any case between the two components of this quotation in the complainant’s submission.

If the complainant’s union felt as a matter of principle that, as a pre-condition, one party must enter the process with the admission referred to it would hardly matter that the mediator was a qualified external person. (It is unlikely that a trained mediator would have undertaken the exercise on such a basis anyway.)

The contribution of this seriously erroneous thinking to a process that might otherwise have led to the complainant retaining her job is of concern, and the trade union concerned should critically evaluate its contribution to this.

And it is not the first time that I have had to refer to it in a Recommendation under this Act and it suggests that within the complainant’s union there is a misunderstanding in its approach to mediation that could be affecting the opportunity to amicably resolve such disputes. This is very worrying indeed.

There is a further, very particular reason for addressing this fallacy and what follows is an extract from an earlier WRC Recommendation I wrote on this subject.

‘While mediation is a voluntary process, it is now well established in the world of commercial mediation that there may be serious consequences for failing to participate, or even for behaving unreasonably at the mediation.

The idea that the principle of consent may give a person a right of unconditional veto is significantly at odds with current thinking.

The Mediation Act 2017 (which does not apply to employment disputes) and jurisprudence in the UK have set up for the first time the prospect of adverse costs findings, even where a party succeeds at litigation (subject to certain exceptions (See Dunnett v Railtrack [2002] EWCA Civ 302, Halsey v Milton Keynes General NHS Trust (2004) EWCA Civ 576 and similar cases)

The situation is different in respect of workplace disputes and the system of employment tribunals where no costs are awarded. But this is a clear statement of public policy intent that, while it remains voluntary, there will be consequences to unreasonably rejecting amicable dispute resolution, which is the preferred option.

This is why the idea that the consent principle means that a person may simply veto participation in mediation is challenged by these developments, and HR and trade union practitioners may have to play catch up with this new reality.

Because there are ways in which this does have consequences for cases to be heard under this particular Act.

It is well established that a WRC Adjudicator will not entertain cases in circumstances where internal procedures have not been exhausted.

There is a powerful argument, on the basis of the public policy point just made that ‘internal procedures must include mediation, where the circumstances are propitious, and subject to the type of exceptions in the Milton Keynes Trust case.

Trade unions and employers may need to engage with current trends in amicable dispute resolution and engage on this issue in respect of individual grievances in particular and the provisions of the Code of Practice on grievance and discipline (SI 146/200) look very dated in the context of these developments.

It ought not be sufficient that a person will eschew alternative and amicable dispute resolution simply because they want a second bite at the cherry at the WRC.’

And this indeed is a growing trend outside the workplace as courts throughout the world grapple with the principle of mediation as a voluntary consensual process on the one hand, and with the necessity to strongly encourage parties to resolve their disputes using it.

This is well summed up in the expression that mediation is not an alternative to the justice system but is part of the justice system.

In the workplace where the importance of maintaining good working relationships is so important this is even more applicable, and there is need of a quantum change in the mindset of parties to its use.

In my opinion, the requirement to undertake at least a preliminary meeting with a person qualified to explain the mediation process should now be included in all grievance procedures after due consultation with stakeholders, although it is hard to see anyone objecting to such a provision. This notion was well received by the respondent at the hearing and as a large employer it could be a trend setter in this regard, and I encourage it to do so.

This is not mandatory mediation, but it is a move away from the allowing the type of frivolous or arbitrary rejection of the process which happened in this case.

For all of these reasons the decision by the complainant (probably based on the advice of her union set out in the submission) was particularly ill-advised and probably prevented a happier resolution of the matter than represented by this current process.

In summary, the respondent acted properly and promptly in responding to the initial incident and to the subsequent formal complaint. There was an apology to the complainant which she chose to regard as inadequate, and an offer of mediation which she (or her union) rejected, she was given an appeal.

There is no basis for her complaint, indeed her own conduct at various stages of the matter was quite unreasonable.

 Mediation, procedures.