Worker

Employer

Anonymised Parties

     A Worker

A Third Level Institution

Representatives

  Self-represented

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 - 00000022

31/03/2022

The worker lodged a formal complaint on the 4/5/2021 comprising of 4 complaints of alleged bullying against a colleague under the employer’s Policy on Dignity and Respect and Procedures for Dealing with Harassment and Bullying (PDR).  An investigator was appointed further to the PDR and Terms of Reference (TOR) of the investigation. The investigator issued his report on the 9/7/2021 and found that none of the four complaints were upheld. The worker appealed the findings which were considered by the President of the institution who issued a decision on the 14/3/2022 upholding the original findings.

The worker submits that due to procedural shortcomings that he was denied a fair hearing further to an investigation process conducted under the PDR and that he was denied the opportunity to have inaccuracies in the investigating officer’s report rectified.

The employer refutes the allegations and maintains that the investigation was conducted thoroughly and fairly in compliance with the employer’s procedures, TOR, and the principles of natural justice and fair procedures.

The WRC received the referral of the dispute under Section 13 of the Industrial Relations Acts 1969 (the Acts) from the worker on the 31/3/2022.

The worker is a long-standing employee with the employer.  On the 19/3/2021 the worker emailed the HR manager regarding an issue that had arisen between himself and a colleague. The worker and the HR manager met informally on the 22/3/2021 to discuss the matter, attempts were made to resolve the matter informally, which were unsuccessful. 

The worker lodged a formal complaint on the 4/5/2021 against a colleague (Mr. Y) regarding 4 allegations of bullying related to the following incidents: 

·       Mr Y’s refusal to answer emails in relation to the worker’s transfer to another department.

·       Mr Y’s refusal to answer emails in relation to his efforts to resolve grading issues.

·       Inappropriate and offensive remarks made by Mr Y to the worker during a programme  board meeting.

·       Mr Y falsely accused the Worker of “sitting in professional judgment of a colleague” during an MS teams meeting.

The complaints were lodged under the employer’s PDR, further to which, an investigating officer was appointed who was considered an appropriate member of management whose role was to act as an impartial and independent investigator. TOR of the investigation were provided to both parties.

Further to the TOR the worker was interviewed by the investigating officer on the 25/5/2021 and Mr Y was interviewed on the 3/6/2021. Four people were invited to attend as witnesses two people declined to attend and two were interviewed.

The investigation officer issued his report on the 9/7/2021 and did not uphold the four complaints. In line with the PDR and TOR a senior member of the executive management team (Mr X) was appointed as the decision maker in relation to the investigation.  The worker provided his comments on the report and met with Mr X on the 5/10/2021.

Mr X issued his findings on the 15/10/2021 and found that none of the four complaints were upheld. The worker lodged an appeal in line with the terms of the PDR and TOR, on the 11/11/2021 with the President of the institution, and met with the President on the 18/2/22. The President issued his decision on the 14/3/2022 and did not uphold the appeal.

The worker submitted that due to procedural shortcomings he was denied a fair hearing, that he was denied the opportunity to have inaccuracies in the investigating officer’s report rectified, the findings are “incomprehensible and unsound” and the report is flawed.

On the first hearing day, the worker presented four grounds for procedural shortcomings and stated he had 55 instances to support ground 1, 71 instances to support ground 2, 19 instances to support ground 3 and 21 instances to support ground 4. Considering the number of procedural shortcomings at issue, I requested the worker to provide two instances for each of the four grounds. During the hearing a fifth ground for procedural shortcomings was identified.

On the first hearing day and by way of supplemental submission the worker outlined the following five grounds relating to procedural shortcomings.

·       The investigating officer’s report dated 9/7/ 2021 contains numerous errors, 55 instances cited, 2 examples provided,

·       The investigating officer’s report omits crucial evidence, 71 instances cited, 2 examples provided,

·       The investigating officer’s report does not assess or analyze the select and limited amount of evidence presented in the report, 19 instances cited, 2 examples provided,

·       The investigating officer’s report is devoid of any form of fair and rigorous method to establish facts, 21 instances, 2 examples provided,

·       The manner in which the worker’s appeal was dealt with by the President was not in accordance with the procedure.

In relation to the first ground the worker submitted that the investigating officer’s report contains erroneous wording which has resulted in various invalid findings of fact. He cited as an example that on page 4 of the report the investigating officer states that the worker “claims that he emailed the HR manager”. The worker contended that it should read the worker “emailed the HR manager”, it is not a claim on his behalf, but it was submitted, is a matter of fact. Accordingly, it was claimed that this is an invalid finding of fact and demonstrates bias on behalf of the investigating officer.

In relation to the second ground the worker submitted that relevant witnesses were not called by the investigating officer resulting in a significant lost opportunity to establish the facts, accordingly, he has omitted crucial evidence. The worker highlighted that one of the witnesses who he put forward (Mr A) declined to be interviewed as a witness in relation to his third complaint on the basis that he wasn’t prepared to be a sole witness when twelve other independent witnesses were not being called who also attended the online meeting. The worker claimed that the investigating officer should have called the additional twelve witnesses who were at the meeting where Mr Y told the worker to “go take a hike”, to establish the facts and the tone and manner regarding how the remark was said and considered it “inexplicable” that he didn’t.  

The worker also submitted that the investigating officer chose not to call as a witness Ms Y, one of the five people who attended the meeting in relation to his fourth complaint and therefore the investigating officer has omitted crucial evidence.

In relation to the fifth ground the worker submitted that the appeal procedure was flawed and not in accordance with the procedure, on the basis that his grounds of appeal were not considered by the President. The worker submitted his grounds of appeal, consisting of a 23-page document, to the President on the 11/11/2021. The worker submitted that he met with the President to discuss the appeal on the 18/2/2022, the meeting lasted 35 minutes with a total of 7 minutes accorded to discussing his appeal. The worker submitted that there is no evidence from the President's decision dated 14/3/2022 which demonstrates that his grounds of appeal were considered, and that he did consider all the issues.

At the hearing the worker confirmed that he agreed to the TOR and that he was informed of his right to be represented through the TOR. The worker submitted that the terms of the TOR were breached by the fact that additional information was provided by Mr Y which was set out as Appendix D of the report, that he was not provided with a copy of same during the investigation process nor was he provided with an opportunity to submit additional information.

The worker stated that his impression, further to the meeting on the 05/10/2021 with the decision maker, was that he was not familiar with his document.

The worker submitted that as a result of the procedural shortcomings the investigation process and report are flawed and tainted, and the findings are “incomprehensible and unsound”. The worker submitted that he was denied a fair hearing prior to the publication of the report and therefore the principles of natural justice and fair procedures have been breached.

The employer denies the allegations and submits that the complaints lodged by the worker under the PDR were investigated fully and thoroughly in line with both the employer’s procedures and the principles of natural justice and fair procedures.

The following is a summary of the timeline provided in the employer’s written submissions.

• On 21/04/2021 the worker agreed to attend an informal meeting with Mr Y and the HR Manager with the HR Manager acting as ‘contact person’.

• This meeting took place on 28/04/2021 however matters were not resolved, and on 04/05/2021 the worker lodged a formal complaint.

• On 20/05/2021 an investigating officer was appointed, TOR with supporting documentation was provided to the Worker

• The worker was also provided with a copy of the employer’s PDR policy.  

• On 09/07/2021 the investigating officer’s report was issued to the President.

• It was submitted that this report is 85 pages long and outlines the investigation process followed and includes all relevant documentation. The worker’s 4 complaints are set out along with Mr Y’s responses, details of all information gathered, interviews held, and documentation reviewed is also set out in detail and findings in respect of each complaint.

• The worker responded in detail to the investigation officer’s report.

• On 20/07/2021 the decision maker was appointed, and the final report was issued to

the worker and to Mr Y.

• On 05/10/2021 – the worker met with the decision maker regarding comments on

the report and on 15/10/2021 the decision maker issued his decision to the worker and to Mr Y.

• On 11/11/2021 – the worker lodged an appeal to the President.

• On 18/02/2022 – an appeal meeting was held with the President.

• On 14/03/2022 – the President issued an appeal outcome.

It was submitted that the core of the Worker’s trade dispute as referred under Section 13 of the Acts are the same four issues raised by him in response to the investigation report and which formed the basis of his appeal to the President. It was submitted that these four issues have therefore been dealt with internally in line with the employer’s internal process.

It was contended that the worker is simply not happy with the findings and with matters around the layout of the report rather than anything of substance and that there is no basis for the four issues raised by him.

The employer’s response to the four procedural shortcomings as set out in their written submissions is as follows.

1.       The report contains numerous errors.

It was submitted that this appears to be an editing exercise only in terms of how the worker feels the report should have been laid out and how particular emails should have been referenced in the body of the report. Full transcripts of the said emails are contained in the worker’s own formal complaint which is at Appendix B of the report. It was submitted that this was the starting point for the investigation process and those emails were, of necessity considered by the investigator.

2.       Omission of crucial evidence.

It was submitted that this complaint appears to be an editing exercise with the worker suggesting amended wording for various parts of the final report.

3.       The final report does not assess or analyse the evidence.

It was submitted this complaint appears to relate to suggested wording for the final paragraph of the investigator's report findings and again a suggested form of wording so that it is made clear how the worker was made to feel. It was submitted that no credible evidence was put forward regarding the worker’s perception that the report does not assess or analyse the evidence and it was submitted that this is his subjective opinion on the matter.

4.       The report is devoid of any form of fair and rigorous method to establish fact.

It was submitted that nothing relevant has been put forward under this heading by the worker beyond what appears to be a micro analysis of the language used. It was submitted that the terms of reference were agreed prior to the commencement of the process, and these set out the methodology to be used throughout the process encompassing the method to be used to establish facts. These were shared with the worker prior to the investigation and no issue was raised by him.

5.       Appeal procedure was flawed – grounds of appeal not considered.

It was submitted that the worker’s approach in relation to the appeal was similar to his meeting with the decision maker on the 05/10/2021, where his response was to state that everything was in the document and it was further submitted the worker refused to engage or elaborate on the issues and to have a full discussion with either the decision maker or the President on the grounds of his appeal.  It was submitted that a detailed document was provided to the President as part of the appeal process that all the issues were given full consideration by the President who issued his decision not to uphold the worker’s appeal.

At the hearing the senior member of the executive management team who was the designated decision maker stated that he had a meeting with the worker on the 05/10/2021 regarding his comments on the report. He stated that the meeting was difficult and stilted, that he asked the worker to take him through his document, and the worker stated that it was all in the document. He further stated that he had read the worker’s document/comments prior to the meeting however, it was the worker’s perception that he was not familiar with his grounds of appeal/comments.  He stated that in his view, there was very little forthcoming from the worker at the meeting.

In conclusionit was submitted that the investigation was carried out in line with best practice and fair procedures and that all the relevant evidence and documentation put forward was considered. It was submitted that in view of the fact, that the worker is unhappy with the outcome and wording of the final report, that is not a legitimate basis on which to repeatedly appeal the findings both internally and externally.

In conducting my investigation, I have listened to and considered all relevant submissions both written and oral presented to me by the parties. 

My role here is to examine the merits of the dispute in line with the standards of fairness and reasonableness. I am mindful that both parties are in a live working relationship, therefore, my role here is to try and assist the parties reach a resolution of the dispute.

At the centre of this dispute is a breakdown of personal relationships between two colleagues. The worker lodged 4 formal complaints alleging bullying against a colleague under the employer’s formal PDR, in April 2021. On 20/05/2021 an investigating officer was appointed further to the PDR and TOR. The investigating officer issued a report dated 09/07/2021 to the President. On appeal the worker’s complaints were not upheld by the President who issued an appeal outcome on the 14/03/2022.  

The worker is dissatisfied with the investigation process, the report findings and the appeal process and claims that the process was flawed and carried out in breach of his rights to fair procedures and and natural justice. Accordingly, it was submitted that the findings are “unsound and incomprehensible”. The employer refutes all allegations in full.

The Labour Court has set out on numerous occasions and most recently in the case of LCR22832Environmental Protection Agency and A Worker, it’s views on the standard required to set aside an outcome further to a formal investigation process. The Court stated as follows.

“Having carefully considered the Parties’ written and oral submissions, the Court finds that there are well-founded criticisms that can be made of aspect of the approach taken by the Employer to both the grievance raised against the Worker by Mr X and the investigation of the Worker’s complaints under the Dignity at Work Policy ……Nevertheless, there is nothing before the Court to substantiate the Worker’s claims that the shortcomings identified above resulted in a process that was fundamentally detrimental to him or caused him to suffer an injustice. Taken in the round, the investigation of the Worker’s complaints under the Employer’s Dignity at Work Policy was comprehensive, thorough, balanced and fair; the resulting disciplinary and appeals process yielded an outcome that was proportionate and reasonable in all the circumstances, in the Court’s view.”

This decision upheld an Adjudication Officer’s recommendation, ADJ-00037911 Technical Officer - Manager Grade v State Agencywhere it was stated that when a worker submits formal grievances/complaints against another worker or workers and the employer engages in a full investigation, especially an external investigation, compelling reasons should exist before an Adjudication Officer recommends what would in effect be a reinvestigation of the original grievances/complaints.

In that case the Adjudication Officer set out four criteria that should exist before a recommendation is made to set aside the investigation and findings, in favour of recommending a reinvestigation of the original complaint. The four criteria identified include the following:

•       “There must have been complaints about procedural issues before or during the investigation and those procedural complaints must be valid ones when viewed objectively in terms of fairness and equity of treatment and/or

•       It must be evident to the AO that an investigation was not conducted to a standard which followed basic requirements such as providing terms of reference in advance, taking statements, providing those statements to the main parties, providing an opportunity to the main parties to comment on those statements and/or

•       While not investigating the complaint or seeking to second guess the investigator, an AO could decide that the findings were perverse, being so at odds with the available evidence or that the findings did not address the complaint made to such an extent that they may be regarded as unsafe and should be set aside in part or in whole.

•       Sustainable evidence of direct interference in the conduct or outcome of an investigation, whether that investigation is conducted internally or externally on behalf of the employer.

In the circumstances of this case having listened carefully to the parties on both hearing days and considered the submissions of both parties, I find that none of the requirements exist for recommending that the investigation process was flawed, resulting in findings that are unsound and therefore should be set aside. I make this finding for the following reasons.

The worker was provided with TOR prior to the commencement of the investigation process, no issues were raised by the worker regarding any aspect of the TOR. The worker met with the investigating officer on 25/5/2021 and was provided with the notes of the meeting and an opportunity to comment on the notes which were exhibited in the final report. All statements taken from all witnesses were included in the final report an 85-page document which includes details of all information gathered, interviews held, witnesses who were invited and declined to attend and documentation that was reviewed.

The worker was provided with an opportunity to comment on the report and provided his comments by way of a detailed document forwarded on the 28/9/2021 to the designated decision maker. The worker met with the decision maker on the 05/10/2021 who was appointed by the President under the PDR and TOR to issue findings based on the report. The decision maker issued his findings on the 05/10/2021 not to uphold the four complaints, having considered the report and comments of the worker.  I accept the statement of the decision maker who confirmed that he had read the worker’s comments prior to meeting with him and stated that it was the worker’s perception that he was not familiar with his grounds of appeal/comments, which was not in fact the case. The worker lodged an appeal further to the PDR and TOR and met with the President on the 18/2/2023 in the context of the appeals process, the appeal was not upheld. 

The worker submitted as a procedural shortcoming that crucial evidence was omitted by the investigating officer as he failed to call relevant witnesses, specifically 12 witnesses who had attended an online teams meeting. In accordance with the TOR on the 4/6/2021 the worker was invited to call any witnesses to support his case and he put forward two names as witnesses, who for various reasons declined to act as witnesses.  

I do not agree with the worker’s submission that the investigating officer should have called an additional twelve witnesses who attended the meeting where Mr Y told the worker to “go take a hike”, to establish the facts and therefore breached the TOR by failing to do so. The TOR provide the investigating officer with the discretion to meet with relevant witnesses “if they deem it appropriate”. 

The investigating officer invited the two witnesses which the worker selected to attend.  I find that the investigating officer acted in compliance with the TOR as he had discretion as to who he deemed appropriate to call as a witness and sets out in his report his reasons for not calling other witnesses in relation to this complaint. Accordingly, I do not consider that the investigating officer omitted crucial evidence or breached the TOR as alleged.

I acknowledge that there are errors of a minor nature, in many cases related to erroneous wording by the investigating officer, which the worker has highlighted in his submission which are acknowledged by the employer in many instances. I do not consider that the errors as cited demonstrate bias on behalf of the investigating officer or are of such significance as to allow me to conclude that the process “resulted in a process that was fundamentally detrimental to him or caused him to suffer an injustice”, as set out by the Labour Court in the above recommendation. 

I have carefully examined all the examples provided by the worker of alleged procedural shortcomings, many of which were of a minor nature and in certain instances related to inaccurate wording, which I do not consider to be of sufficient significance to taint the process to such an extent as to invalidate the investigation process.  However, I have concerns regarding two procedural shortcomings which I shall address.

The worker submitted that the terms of the TOR were breached by the fact that additional information was provided by Mr Y which was set out at Appendix D of the report, that he was not provided with a copy of same during the investigation process nor was he provided with an opportunity to submit additional information.

I note that the additional information dated 2/6/2021 provided by Mr Y consisted of a statement setting out his rebuttal in full of all the complaints, it does not consist of any additional evidence or documents and is dated 2/6/2021. I note that Mr Y was interviewed on the 3/6/2021 and in the notes of his interview there is reference to a statement that he provided to both the investigating officer and the note taker.

It appears to me that the additional information, is a written statement from Mr Y which he prepared prior to and in the context of his interview with the investigating officer and that there are no major differences between this information and the notes of the meeting with Mr Y set out at Appendix C of the report. I note that the TOR allow the investigating officer to consider other evidence relevant to the proceedings.

It is my view that in the interests of transparency the investigating officer should have informed the worker that he had received a written statement from Mr Y and that it was provided in the context of his meeting with him. However, I do not consider that the inclusion of this information constitutes a breach of the worker’s rights to fair procedures nor amounts to a fundamental flaw in the investigation process. I am also mindful that the worker had two further opportunities to raise this matter and other procedural issues by way of submitting comments to and a meeting with the decision maker and by way of appeal to the President, which he availed of. 

The worker submitted as a ground of procedural shortcoming “the manner in which my appeal was dealt with by…. was not in accordance with the procedure” . The worker claims that the President who heard the appeal in accordance with the terms of the PDR and TOR has not stated or claimed in his decision dated 14/3/2022 that he has “considered all issues contained in my appeal document “.  

The TOR provide for an appeal to the President, and it does not state whether this is an oral appeal or by way of paper review. Under Section 4.2.8 of the PDR an appeal is provided to the Director where an opportunity to comment will be provided. The worker lodged his appeal setting out in detail four grounds of procedural shortcomings and met with the President on the 18/2/2023. Notwithstanding that the worker stated that the President only spent 7 minutes of the meeting discussing his appeal, he had the opportunity at this meeting to set out in detail his grounds of appeal.  I note the submission of the employer who claimed that both the decision maker and President submitted that, the Worker at each meeting refused to elaborate on his grounds of appeal. I note the decision maker supported this assertion at the hearing.

The President issued his decision on 14/3/2022 not upholding the appeal stating “having carefully considered the points raised by you at our meeting. I find that the original decision is upheld”.  As an appeal process is concerned with procedural issues primarily, it is generally considered reasonable to provide a review of the papers only. Considering that the worker had the benefit of an oral appeal before the President, I find that the appeal was conducted in compliance with the terms of the TOR and PDR.  While I may have concerns regarding the level of reasoning provided by the President in his decision dated 14/3/2022, I do not consider this shortcoming sufficiently significant to ground a finding that the manner in which the appeal was carried out constitutes a breach of the TOR or PDR.

Having considered the numerous procedural shortcomings identified by the worker, if there has been a procedural shortcoming as set out above, I do not consider that the extent of the flaw is to such a degree that the process is invalidated or can satisfy the test as set out by the Labour Court, whereby the worker can demonstrate that the process “was fundamentally detrimental to him or caused him to suffer an injustice” .   

Considering the written and oral submissions of the parties and having read the investigating officer’s report I do not consider that the findings were “perverse, being so at odds with the available evidence or that the findings did not address the complaint made to such an extent that they may be regarded as unsafe”. Overall, I consider that the investigation process was thorough and fair, and that the findings addressed the complaints and were based on the available evidence and documentation provided.  I do not consider in the circumstances of this case that compelling reasons exist to set aside the investigation officer’s report.

In summary it appears to me that the worker in this case does not agree with or does not accept the findings further to the investigation process.  In light of the foregoing, in the circumstances of this case, I do not find any procedural shortcomings identified to the extent necessary that would justify setting aside the investigating officer’s report and would warrant recommending a reinvestigation of the four complaints. 

I can appreciate the impact upon the worker resulting from a breakdown in the working relationship with Mr Y.  I can also appreciate the impact upon the worker and Mr Y, and on their working relationship, as a result of their engagement in a formal investigation process.   In this context mediation can be a useful and beneficial process for parties, who are willing to engage in such a process, to foster and strengthen working relationships.

Considering the circumstances of this case, and for the reasons set out above, I do not find merit in  the worker’s case and therefore, I do not recommend in his favor.

Bullying – Investigation process -