Worker

Employer

Anonymised Parties

A Worker

A Transport Company

Representatives

Diarmuid O'Connell CWU Communicators Workers Union

Emily Maverley

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 - 00001563

20/07/2023

The dispute concerns the Worker’s complaints with regard the manner in which a workplace investigation and appeal was conducted.

The Worker described his career history with the Employer. The Worker also described the clocking out process in the workplace and the period between clocking out and exiting which is unpaid and can take up to 30 minutes. The Worker stated that as a consequence of the exiting policy staff rush towards the exit when the bell goes to signal the end of their shifts. The Worker described an incident which occurred on 26 January 2023 when he “began to jog towards the queue to be scanned out” and was advised to desist from running by his manager. The Worker stated that he did so, that he gave an undertaking it would not happen again but that he “was subsequently physically grabbed by the collar by his manager”. The manager twice apologised for what occurred and this was accepted by the Worker. Notwithstanding, the Worker stated he was impacted by what occurred and accordingly, he submitted a letter to the Employer dated 2/2/2023 which complained of “assault”, “physical harassment”, “stress and anxiety” and requested a thorough investigation.

The Worker outlined his complaints with the process of investigation of his grievance including that it was not thorough, that the Employer relied on incorrect CCTV footage to which initially he was not afforded access, that relevant witnesses were not identified or interviewed and that the reason for the manager’s apology was not pursued. The Worker took issue with the investigation report which concluded that although physical contact was established the allegation of physical assault was not upheld. The Worker also took issue with the outcome of his subsequent appeal which upheld the investigation report. The Worker stated the appeal process was biased against him and pre-occupied with the manager’s apology and why he/the Worker had pursued a complaint. The Employer stated his nominated witness was not interviewed in the course of the appeal process. The Worker also stated that the investigation report’s recommendations were not actioned including as regards his relationship with the manager.

It is the position of the Worker that he was denied fair procedures and natural justice in the course of the grievance investigation and appeal process. The Worker is seeking that the recommendations of the investigation report be implemented and compensation to acknowledge the stress and indignity he endured.

The Employer raised a preliminary objection as regards my jurisdiction on the basis that the Worker had submitted his dispute under bullying and harassment which was incorrect and did not apply as the dispute stemmed from a single incident.

The Employer outlined the incident of 26 January 2023 and stated that the Worker was verbally warned to stop jogging towards the exit and that when the manager “raised his hand [it] made contact with the [Worker’s] chest due to his continued progression toward the screening area”. Thereafter the Employer stated there was an investigation and an appeal consistent with its procedures - that it received the Worker's complaint on 20 February 2023, that there was an investigation meeting with the Worker on 23 February 2023 and with the manager on 1 March 2023 and that it invited all named witnesses to provide statements and attend a meeting. The Employer stated that on 15 March 2023 it reviewed the CCTV footage from the time and date of the alleged incident, that it issued its initial findings of the grievance investigation on 23 March 2023, invited feedback and issued the final report on 31 March 2023. The Worker’s complaint was not upheld either at the investigation or appeal stage.

In respect of the CCTV footage the Employer stated that the Worker was afforded an opportunity to review the footage at the appeal meeting held on 24 April 2023 and at a further appeal meeting held on 24 May 2023 following concerns raised by the Worker as to the accuracy of the CCTV footage time shots.

The Employer rejected the Worker’s submissions in relation to the CCTV and witnesses. The Employer stated that the Worker was afforded the opportunity to comment and/or raise issues with all witness statements and had adequate opportunity to review the CCTV. In relation to the working relationship between the Worker and the manager, the Employer stated that following the Worker’s return to work after a period of sick leave the parties had very little interaction and that in the circumstances it took no further action.

It is the position of the Respondent that it conducted a thorough and fair investigation which complied with the principles set out in the Code of Practice on Grievance and Disciplinary Procedures – Statutory Instrument (SI) 146/2000. In that regard, the Employer stated that throughout the process the Worker was afforded the right to be accompanied, that he availed of this representation, that the investigation and appeal stages were conducted by different persons and that all information was carefully and objectively considered before decisions were reached.  

Section 13 of the Industrial Relations Act 1969 provides that ".... Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended….., a party to the dispute may refer it to a rights commissioner [ie Adjudication Officer]".

In conducting my investigation into this dispute, I have taken account of all relevant submissions and documentation presented to me by the parties and have come to the following conclusions:

·       I do not accept the Employer’s submission that I do not have jurisdiction to determine this dispute on the basis that the Worker ticked the “Bullying and harassment procedures” box on his Complaint Form to the WRC. In that regard, I am satisfied that the Worker gave a detailed description of the dispute at Section R of the Form/“Details of your Complaint” which satisfies my jurisdiction pursuant to Section 13 of the Industrial Relations Act 1969;

·       There is no dispute that an incident occurred between the Worker and his manager on 26/1/2023 which was the subject of a complaint by the Worker and subsequent investigation by the Employer. In that regard I note the Worker was not afforded the opportunity to view the CCTV until the appeal stage. The Employer’s CCTV policy provided that it could be used where there is a risk to health and safety. Whilst I am of the view that the Employer should have ensured that all material and information it was considering at the investigation stage – including CCTV – was simultaneously available to the Worker, from the information and submissions I am not persuaded that the Worker was significantly disadvantaged by the failure to do this nor am I persuaded that the findings of the investigation or appeal would have significantly differed if the correct CCTV was considered at the outset;

·       In relation to witnesses, I note that the investigation’s Terms of Reference stated its purpose was to meet with “all parties who are potentially adversely affected” and to interview the Worker and “any named witnesses”.  In my opinion, there is no requirement that all potential witnesses are interviewed as part of an investigation – the object of an investigation is to establish the salient facts which may be achieved by speaking with a small number of witnesses. In addition, a complainant him/herself has a responsibility to suggest witnesses s/he wishes to be interviewed as part of an investigation. In this instance, I accept the Employer obtained statements from all named witness – which included one witness named by the Worker at the investigation stage. The Worker subsequently named a further witness but efforts made to interview that witness were unfortunately unsuccessful. This was not a statutory inquiry and in all the circumstances, I am satisfied that – apart from the witness named by the Worker at the appeal stage - the Employer took the appropriate and necessary steps to interview the named witnesses in accordance with the Terms of Reference of the investigation;

·       The outcome of the investigation acknowledged that physical contact had occurred but that the allegation of physical assault was not upheld. In terms of my role as an Adjudication Officer, it has been well established in case law that it is beyond my scope to re-investigate workplace grievances or to substitute my view for that of the appointed Investigator. Accordingly, I do not propose to comment on the conclusions reached at the investigation and appeal stages, or on the apology made by the manger or suggest that the apology should have been queried. In all the circumstances, I am satisfied that the conclusions reached were in accordance with the Terms of Reference, that the Worker was afforded representation throughout and that the process was conducted by and large in accordance with the principles of fair procedures;

·       All three recommendations of the final investigation report have not yet been actioned particularly as regards endeavours to improve the relationship between the Worker and the manager.  

In light of the foregoing, I make the below recommendations.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I make no recommendation as regards the Worker’s sick leave or proposed compensation. I make the following recommendations as regards the investigation process:

1.       That the Employer review its policy on grievance procedure investigations so as to ensure:

a.       That all information considered as part of an investigation – including CCTV – is shared with the parties to the investigation and/or appeal process simultaneously and at the earliest opportunity;

b.       That every effort is exhausted to interview relevant or named witnesses.

2.       That the final recommendations of the investigation report of 31/3/2023 be implemented.

Grievance Procedure Investigation