Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Self-Represented

Mr Bernard Martin 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 - 00001504

29/06/2023

This matter came before the WRC dated 29/06/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under bullying and harassment procedures.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 12/01/2024.   

The Worker commenced employment with the Employer on 29/11/2021 in the role of Community Operations Specialist.  The Employer is engaged in the business of video social networking provision.

The Worker submitted a dispute that he wished to make a complaint about his employer and their inaction to complaints about the manner in which he is being bullied by his Team Leader (hereafter TL). 

The Worker submits he raised issues with HR on 02/12/2022 and a meeting was held on 15/12/2022 and that no further action was taken. 

The Employer submits that this is not the case, and the informal procedure was followed under the Dignity at Work Policy through which the Worker’s complaints were comprehensively addressed.

The Worker filed a written submission on 18/12/2023.  The Employer filed a written submission on the day before hearing which I did not have sight of until the commencement of hearing. 

I have extrapolated the key elements of the Worker’s case and I summarise hereunder.

The Worker submits his complaint is based on 2 separate issues, firstly, the ongoing bullying itself, and secondly, the fact the Employer did not follow company procedure regarding bullying, as laid out in the employee handbook, and the issue has been left largely unaddressed and unresolved.

The Worker submits because of this, his mental and physical health has deteriorated, and in terms of his career within the company he has had multiple reviews where he feels his grade was negatively affected by the bullying, therefore, he was prevented from getting the compensation/pay rises/bonuses he feels he deserved, and could have gotten, if he was properly supported by the Employer and the issues dealt with correctly.

The Worker submits he first contacted his assigned contact in HR on 02/12/22 and asked for a meeting to discuss his TL and the bullying.  The meeting was eventually held on 15/12/22 where he formally complained about his TL bullying him and outlined much of the behaviours and admitted it had already gotten to the point that he was no longer sleeping properly due to the stress caused by his TL, and this, combined with stress, was affecting his ability to work properly, meet targets, and be productive.  The Worker submits it was also around this time he began to manifest physical health issues that would later be diagnosed as stress related.   The Worker submits he gave many examples and was told at the end of the meeting that the next step would be to follow up with the TL’s manager. 

The Worker submits he followed up the meeting by forwarding his HR contact many written conversations that he and his TL had and outlined the bullying behaviours that lead to those written conversations, as proof to HR of the bullying that he was enduring.  The written conversations dated back to 16/11/22 as this was around the time he also made a specific effort to have more written conversations with his TL to prove his claims and document the bullying.  

The Worker submits that as the bullying behaviour continued, he continued to update HR in writing via the internal messaging system, about things his TL said and did.  The Worker submits he wrote to HR stating that if his TL had been spoken to, she has not listened to a word on 10/01/2023.

The Worker submits he followed up again on 09/03/2023 alerting HR that before the annual performance review which was about to happen his TL had told him she was going to struggle to give him an “M” which was an average grade.  The Worker submits his physical health was declining and he we went to the doctor on 24/03/2023 to discuss possible causes.  The Worker submits he had multiple appointments, multiple visits, much testing and discussion after which his GP deemed him physically unwell due to stress at work. 

The Worker submits on the 18/04/23 his GP signed him off work for 2 weeks starting from 24/04/23 until 08/05/23.  During this time the Worker submits here was a slight improvement in his health however, he was still in need of further testing from hospitals to ensure there is not a bigger health issue as the physical manifestation of stress was prolonged.

The Worker submits on 19/04/23 he got his performance review results and received a negative grade, and on one section, the lowest score possible.   The Worker submits the review was scathing and felt very personal from his TL and was the culmination of months of bullying and her constant efforts to disrupt his ability to work.

The Worker submits that on the 11/05/23 his GP wrote him a note that explained that due to the toxic work environment, he should stay working from home to limit his contact with his TL.   That same day the Worker submits he contacted HR and requested to work from home so his contact with his TL would be limited.

The Worker submits he was then referred me to Occupational Health to assess his request.  The Worker submits he appealed the performance review and in the Performance Review Appeal meeting on 18/05/23, he discussed the results with a group of managers and he stated he said the result was unfair and that his TL had been bullying him for months.  The Worker submits that throughout the performance review meeting his claims of bullying were constantly dismissed and he submits the issue was put back on to him.   The Worker contacted HR after the performance review appeal meeting expressing his shock at the behaviour of one of the managers and requesting to move department as he could no longer work there.  HR offered a move to a different team 5 weeks later which he submits was not a feasible option at all. 

The meeting with Occupational Health on 23/05/2023 concluded that he should remain working from home for the betterment of his health as submitted by the Worker together with advising a speedy conclusion to ongoing matters and the input of a third party is strongly advised  by way of discussions to help further identify issues raised by the Worker and recommends an independent third party from another department or a more senior level can be of benefit or an external mediator if required. 

On 06/06/23 the Worker submits he had an appointment in Citizen’s Information and advised the person with whom he spoke of all the previous issues, incidents, and timeline of events.  Citizen’s Information advised that if he had followed the employee handbook, and the Employer had not taken the correct actions, and the issues were unresolved and ongoing, the next step would be to contact WRC.   Following this, on the 28/06/23, he submitted my WRC complaint via post

The Worker submits he continues to seek to move but to date he has not found another position suited to his skillset.  The Worker submits he has engaged on a 1:1 basis with the newly appointed Global Operation Lead and he updated him on all that had transpired.  The Worker submits he is currently on a performance improvement plan due to low productivity as a result of him having to take care of his health first. 

The Employer submits that on 2 December 2022, the Worker contacted one of his assigned HR contacts, via the internal messaging platform to schedule a conversation with her in relation to the Worker’s recently appointed TL.  The HRBP met with the Worker on 15 December 2022 to discuss the Worker’s concerns, during which meeting the Worker made allegations of bullying and “targeted behaviour” against his TL.

The Employer submits the HRBP asked the Complainant at this meeting to provide information about the conversations he had referred to with his TL.  On 19 December 2022, the Worker shared screenshots with the HRBP of his conversations with his TL. 

Following review of these conversations, the Employer reached out to the TL on an informal basis to discuss the issues which had been raised by the Worker.   The TL was genuinely upset as she had been getting positive feedback directly from other reports.  The Employer reviewed feedback on the TL given by team members to investigate any further details and to identify improvement areas to help the TL to act on such areas.

The Employer submits that, taking account of the nature of the complaint made by the Worker and the specific incidents referred to and recognising that the TL had only recently been appointed as of 15 August 2022, decided that the best course of action was ongoing support and leadership coaching on team support and communication style.  The TL acknowledged that she was new to people management and took on board the feedback, putting all her focus on the training and coaching from leadership to improve her communication style and support.

On 1 March 2023, the Worker wrote to the HRBP expressing concern about his upcoming performance review, and pre-empting that he would receive a negative score from his TL related to poor productivity, who had told him that she was going to struggle to give him an overall score of "M" (an average grade).    The HRBP explained the TL’s role in the performance review process indicating to the Worker that the performance of all team members is reviewed and calibrated with 3 layers of management and naming the three managers.  The Employer outlined that each is assessed based on expectations, actual outputs, achievements and 360 feedback.  The Employer outlined that it is his TL’s main responsibility as a people manager to provide timely, objective and specific feedback to team members when minor improvement is needed in the stability and quality of work delivery as she is responsible for the team performance and delivery of results at the team level. 

The Employer submits on 19 April 2023, the Worker notified the Employer that he had attended his GP and he had been advised to take stress-related leave, which he attributed to his upcoming performance review.  The Worker provided the Employer with a medical certificate stating he would be unable to work for a period of two weeks from 24 April 2023 to 8 May 2023.

On 19 April 2023, the Worker received his performance review, which recorded an overall employee rating of M-.  This rating is defined as performing “slightly below expectations” as per the Employer’s rating and there are a further two grades below M in the Employer’s review process.  The Employer submits that on 11 May 2023, the Worker messaged the HRBP to ask how he could apply to work from home as he had visited his doctor and said he had been advised to work from home for his own health.

The HRBP referred the Worker to the Employer’s Reasonable Accommodations Procedure and referred him for an Occupational Health Assessment.  The Worker worked from home until the Occupational Health Appointment was scheduled for 23 May 2023 and despite the company-wide Return to Office (RTO) in May 2023, the Employee has been permitted by the Employer to continue to work from home.

The Employer submits the Worker appealed his performance review results and he was invited to attend a Performance Review Appeal Meeting on 18 May 2023.  The meeting was attended by the Worker, the HRBP, a Ms X and a Mr Y representing two different management layers.   In the meeting, the Worker was informed that the review results he had received were not based solely on the TL’s assessment but also on the Worker’s achievements, development areas, the leadership and peer feedback.  The appeal result was that the “employee’s performance review was accurate, fair and consistent with the expectations of the role and job level. Results will remain unchanged”.

The Employer submits the Worker messaged the HRBP to express his concern with certain comments made during the Performance Review Appeal Meeting by Mr Y.  The Employer does not dispute that Mr Y made the inappropriate comments complained of by the Worker.  The Employer submits, however, the comments made do not reflect the views of the Employer to the extent that the HRBP interrupted Mr Y during the Performance Review Appeal Meeting and asked him to “stick to the performance review”.  During a subsequent meeting the Employer submits the HRBP met with Mr Y and Ms X.  Mr Y was advised on behalf of the Employer that his comments to the Worker at the Performance Review Appeal Meeting were inappropriate, irrelevant and unhelpful for the appeal process.  Mr Y has since resigned from the Employer company.  Ms X was also met with by the HRBP and asked to explain her comments during the review meeting and she stated she sought to comfort the complainant and there was no intention to make him feel he was bullied by anyone. 

The Employer submits that following a referral by the Employer the Worker attended the Occupational Health Appointment on 23 May 2023.  In line with the recommendations put forward by Occupational Health in the Report, the HRBP recommended that the Complainant avail of the Employee Assistance Programme (EAP) for additional support and implemented the work from home recommendation to ensure the Complainant was removed from the environment he was claiming was contributing to his deteriorating health.

The Employer submits the Worker asked to move teams within the company on 18 May 2023.  The Employer submits the HRBP offered such a move on 22 June but this was rejected by the Worker on the basis there would be an overlap between the proposed new team and his TL; that it would involve additional work; and it would require additional training.  It was confirmed to the Worker that additional training would be provided if necessary.  The HRBP followed up with the Worker a number of times on this topic but the Worker continued to reject new roles within the specific team being offered and the Worker told the HRBP that he would continue to work from home on the TL’s team while he was waiting for an opportunity to arise outside of that team.  The Employer submits it was advised to the Worker that he would have to make an internal application for these kind of roles. 

The Worker continued to address his continuing concerns to the HRBP asking to be moved out of this team.  The HRBP on 27 June responded by offering alternatives including desk space on another floor as the Worker had stated he did not wish to sit in the same room as some people and urging the Worker to avail himself of the Employee Assistance Programme.  The HRBP also advised the Worker as he had requested the opportunity to work to report into different leaders for that reason the new reporting line had been offered to him under different management.  The HRBP advised that in terms of moving outside of his current team, the Worker would need to review all open roles within the company and he would need to apply and undergo an interview process for such a role. 

On 12 July 2023, the HRBP followed up with the Worker again and recommended another Occupational Health Assessment and strongly advised the Worker to avail of the EAP.  Further on this date, the HRBP informed the Complainant that the issues had been raised with the TL and with her management.  The Employer submits the HRBP has reached out to the Worker on multiple occasions since then to check how his recovery is progressing and to reassure him of the supports available to him.  By way of example, on 17 July 2023, the HRBP checked in with the Worker to see if any further support was required following a recent hospital appointment.   On 18 July, the Worker stated that “The only assistance I need, is the continued allowance to WFH while I search for a job elsewhere within the company.”

The Employer submits on 27 September 2023, the HRBP again checked in with the Worker in respect of his health and wellbeing.  In this conversation she informed the Complainant that following his complaint, the TL had been receiving ongoing dedicated coaching provided by senior leaders and queried whether the Worker had seen improvements in interactions with the TL.

The Employer submits the Worker responded that his interactions with the TL had improved and that he was unaware she was on any coaching plan, or any actions had been taken to address the issue.

The HRBP went on to inform the Worker that there had been “long term coaching with [the TL] to help her grow as a new leader in communication style, leadership and team support based on [the Worker’s] feedback in winter as she was new to the leadership role and we worked with her to address the feedback.”

The Employer acknowledges that this information should have been provided to the Worker at an earlier stage and had it done so, taking account of the Worker’s comments, a referral to the WRC may not have been required.

In respect to the comments made at the annual review meeting, the HRBP informed the Worker that these comments were “irrelevant and far from reality.  As he left the company, I just wanted to emphasize on what was said before – Mr Z should not comment the way he did and it was addressed with him by me and Ms Y directly straight after that call.”

The Worker submitted his complaint to the WRC on 29 June 2023, it should also be noted that between the Employer addressing the matter informally and the date of the complaint being made to the WRC, the Worker did not raise any specific allegations of alleged bullying in respect of the TL. 

Dignity at Work Policy Informal Procedure

The Employer submits the Worker alleges that issues were raised on 2 December 2022 and a meeting was held on 15 December 2022, but no further action was taken.  The Employer respectfully submits that this is not the case and the Worker has been informed of this.

It is submitted by the Employer that the informal procedure was followed under the Dignity at Work Policy.   On review of the documentation received from the Worker, the HRBP determined that this was a matter which could be appropriately resolved informally.  The Employer submits the HRBP collected details relating to feedback and concerns the Worker had shared with her in the meeting of 15 December.

The Employer submits the HRBP reviewed the complaints with members on the same team as the Worker, who were under the management of the TL.  The HRBP then addressed the complaints with the TL and her leadership directly in an informal and nonconfrontational manner, in accordance with the informal procedure under the Dignity at Work Policy.   

By the Worker’s own admission, the situation with the TL has since ameliorated to the extent that the only continuing support he requires from the Respondent is to be permitted to continue to work from home.   While the Worker alleges that the TL has exhibited bullying behaviours towards other members of his team, it is respectfully submitted by the Employer that it is not for the Worker to make bullying complaints on behalf of his colleagues and such allegations are outside the jurisdiction of his claim.  However, the Employer can confirm that no such complaints have been made about the TL.

It is submitted by the Employer that, in following the informal procedure (as opposed to initiating the formal procedure), the Employer was balancing the competing duty of care it owes to both the Worker and the TL.  The Employer submits at no time has the Worker expressly requested that the matter be addressed under the formal procedure of the Dignity at Work policy nor has the Worker raised a grievance in respect of how the matter was addressed by the Employer. 

The Employer submits the following summary of the measures the Employer has taken to support the Worker as follows:  The Employer, on becoming aware of the Worker’s medical issues, immediately allowed him to work from home to remove him from the work environment and help with his mental health.  The Worker continues to work from home at present.  The Employer also provided the Worker with wellbeing support resources.   The Employer has on a number of occasions offered for the Complainant to move to another team.

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

Having listened to both parties in this dispute it quickly became apparent that even though there was at the very least a gap of mutual understanding on certain matters, there was a commendable level of willingness to engage on both sides.  Attention was drawn to the relatively informal voluntary nature of the process and to my role in attempting to resolve a dispute and recommend a way forward that is fair and reasonable to both parties. 

Based on my observations at hearing I note that the Worker is undoubtedly held in positive regard in his employment on the basis of the cordiality and respect shown by the Employer not to mention the willingness to engage in seeking a resolution to a dispute in circumstances where the Employer’s internal procedures had not been exhausted prior to the making of a referral under section 13 of the Industrial Relations Act, 1969.  I note also the significant level of engagement that has taken place between the Worker and the Employer prior to this referral.      

For completeness, despite the Worker’s belief all internal procedures had been exhausted prior to this referral I do not find this to be the case.  When I review the Employer’s Dignity at Work Policy it is apparent that the procedure which was invoked and subsequently followed is the informal procedure as set out therein.  I am unable to find that the formal procedure was invoked and neither am I able to find that the formal procedure was advocated for by the Employer to the Worker at any stage.  I note also the Worker did not raise a formal grievance about the manner in which his complaints were dealt with which in another of the internal procedures that could and should have been utilised prior to a referral. 

Notwithstanding, the purpose of the hearing is to find a way forward for both parties which is fair and reasonable in order to maintain the employment relationship into the future and to this end I note the Worker likes his job and wishes to continue to work in the company.

I note the Worker when asked what he was seeking that I should recommend states he no longer wishes to work in the department in which he currently works and he wants some recognition for what he has undergone in the past year. 

I do not accept the Worker’s issues have been left unaddressed and unresolved as submitted by the Worker.  However, I am not entirely satisfied that the manner in which matters were addressed were conducive to finding a pathway for the Worker in order that he might move on from this.  I note the Worker has been WFH since May 2023 and continues to work from home to date with which he appears to have no issue.  Notwithstanding, had the mediation option been explored more expeditiously I am of the view the Worker would be back in the office on whatever arrangement of the hybrid working model that prevails in the company. 

I note the informal procedure under the Dignity at Work Policy does not provide for timelines whereas the formal procedure does provide for a proposed timeline during which an investigation will be undertaken.  To this end I am perplexed as to the Worker’s assertion that he had exhausted all the internal procedures as if he had reviewed the Dignity at Work Policy he would have realised he had not moved from an informal procedure to a formal procedure.  However, I find this option was not offered to him by the Employer as it had been determined that this was a matter which could appropriately be resolved informally.  I am not convinced that this was the correct course of action in the particular circumstances of this case but of course I note their entitlement to do so and I also note the Worker had an entitlement to raise a grievance at any time if he was unhappy with the manner in which his complaints were dealt with.

I note the Worker is currently on a Performance Improvement Plan (PIP).  I note a PIP would generally arise after a coaching plan which in this case was unable to be undertaken as the Worker has been WFH.  I note the Worker’s concern that as his TL against whom he has alleged bullying is the supervisor of his PIP he may be managed out of the organisation.  To this end and to allay any such reservations on the part of the Worker, the Employer having noted his concerns, agreed that his PIP will be jointly managed by his TL and the Global Operation Lead. 

The Employer has agreed that it will support the Worker as he applies for roles although it remains incumbent on the Worker to identify and source the roles himself and it is agreed that such roles will be commensurate with his level of skills and experience. 

The Employer encourages the Worker to avail himself of the supports available to him including the EAP together with an even more comprehensive support programme specific to this company. 

The matter of mediation was discussed at hearing and, unfortunately, the Employer was under the misapprehension that the Worker is not amenable to mediation.  The Employer submitted the Complainant had stated he is not open to mediation while the Employer believes that this is the most appropriate course of action to resolve the issues amicably.  The erroneous perception on the part of the Employer on the matter of mediation relates to the fact that mediation is not offered by the WRC for complaints submitted under section 13 and this caused some confusion which was clarified at hearing.  I am satisfied the Worker is amenable to mediation and to this end, I recommend mediation commence as soon as is practicable.  The Employer has a fully accredited and trained mediator in-house and I requested that the parties not wait until this recommendation issue before commencing mediation.  I note the Worker’s initial reluctance to engage with an in-house mediator but when it was explained that this would facilitate an expeditious commencement of the mediation process the Worker agreed on that basis. 

I note the Employer has stated the PIP will be jointly managed to its completion.  Accordingly, there is no requirement for me to make a recommendation in this regard as both parties resolved this matter at hearing. 

I note the Employer has stated HR support will be provided to the Worker after he has sourced suitable roles within the company for which he wishes to apply.  Accordingly, there is no requirement for me to make a recommendation in this regard as this matter was resolved at hearing. 

If this has not already commenced and if not completed by now, I recommend that the Employer organise for a mediator to work with the parties within 2 weeks of the issuing of this decision. 

I recommend, for the avoidance of doubt in the future, the Employer should communicate to the worker which of the company procedures is being utilised for the resolution of a complaint made by a worker (formal vis a vis informal).  Further, I recommend the difference between invoking the informal procedure under the Dignity at Work Policy as opposed to invoking the formal procedure should be explained to a worker when a complaint is first raised.   

I strongly recommend the Employer undertake updated and revised training on bullying with its employees.  I specifically recommend this training should involve clear guidelines as to what constitutes bullying with equal importance placed on that which does not constitute bullying. [emphasis added]  

To this end I recommend the Employer ensure there is a comprehensive Dignity at Work Policy in place that reflects the principles set out in 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 to reaffirm its procedures for dealing with complaints of bullying are in compliance with same.   

I am satisfied the Employer took what were considered to be the proper steps required on receipt of the Worker’s initial complaint.  However, I am of the view the matter should have been expedited and it should have been explained to the Worker that he could have invoked the formal procedure if he were unhappy with the progress of the informal procedure.  The Worker may still have been disappointed with the pace or outcome regardless of which procedure was followed as is very often the case but it would have been prudent to advise him on the matter of pursuing the formal procedure which provides clear timelines as I believe would have been beneficial in the circumstances of this dispute.  I am of the view these matters could and should have been addressed and brought to a conclusion in a more expeditious manner.      

Accordingly, in the interest of good industrial relations I recommend that the Employer should make a gesture of good will to the Worker in full and final settlement of this trade dispute by providing the Worker with 5 days additional annual leave in 2024 for the positive advancement of a harmonious working relationship into the future. 

For the avoidance of doubt, this Recommendation is particular to the unique facts and circumstances of the within dispute and it cannot be quoted or used by any other party in any other case or relied upon in any other forum. 

Internal procedures; bullying complaint; PIP; mediation; WFH;