Worker

Employer

Anonymised Parties

A Baker

A Bakery

Representatives

Michael Boyd Boyd HR

Act

Dispute Reference No.

Date of Receipt

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

CA-00063084

21/01/2021

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

CA-00063084

25/02/2021

The Complainant commenced employment with the Respondent with effect from 30th September 2011.  The Complainant complaints were as follows:

·       Section 13 of the Industrial Relations Act, 1968

Complaint pursuant to Section 13 of the Industrial Relations Act, 1968 alleging that he had been subject to bullying in the workplace and citing instances on 6th March 2020, 10th August 2020, 11th August 2020, 15th August 2020, 17th August 2020, 8th September 2020 and 17th October 2020.

·       Section 13 of the Industrial Relations Act, 1968

Complaint pursuant to Section 13 of the Industrial Relations Act, 1968 alleging that he had been subject to bullying in the workplace and citing instances relating to 20th December 2019, 6th March 2020, 10th August 2020, 11th August 2020, 17th August 2020, 8th September 2020 and 17th October 2020.

The Respondent is a Bakery employing approximately 12 staff.  

·       Section 13 of the Industrial Relations Act, 1968

In its submission, received by the Workplace Relations Commission on 9th April 2021, the Respondent advised that it would not be engaging in the investigation and adjudication of the complaints under the Industrial Relations Act.

Section 13 of the Industrial Relations Act, 1968

The Complainant submitted that on 6th March 2020 Mr. A gave him a letter of “formal warning” and said that he had asked him to attend work at an earlier time (on no particular date) and that he had agreed to it but then didn’t come to work earlier as agreed.  He submitted that Mr. A then gave him another letter referring to “recent behaviours” and asked him to sign the letter, which he declined to do. 

He submitted that on 10th August 2020, his first day back to work following Covid layoff, Mr. A told him that the pancakes he was making were too thin and he told him that another member of staff had to bin the pancakes. He submitted that he asked the member of staff later in the day what was wrong with them and that the staff member told him that they were perfect and didn’t have to be binned. 

He submitted that on 11th August 2020 Mr. A told him he was taking too long making his mixes and that while he was off, he (Mr. A) was able to do two mixes in the time it took for the Complainant to do one.

He further submitted that on 15th August 2020 Mr. A approached him about the baps not being done right.  He submitted that he was not the person doing the baps, that it was Mr. A’s own son who was carrying out that task, yet he was getting the blame.

The Complainant submitted that on 17th August 2020 Mr. A told him he had to take a weeks’ holiday the following week.  He submitted that he then asked Mr. A to check his pancake mix as “apparently it was too thin the previous week.”  He submitted that Mr. A replied “you know better than me.”  The Complainant further submitted that he then asked Mr. A what he would do with the mix, should he go ahead and make them or not, to which Mr. A replied “this is ridiculous” and walked away.

The Complainant submitted that on 8th September 2020 he was told to take a weeks’ holidays the following week.

The Complainant further submitted that on 17th October 2020, 15 minutes before his shift finished Mr. A came to him and said, “we have no more work for you for now and we will ring you when we need you again.”  He submitted that two weeks later another member of staff was on annual leave and the Respondent rang that staff member a number of times to come back in because the Respondent was short staffed.  The Complainant submitted that he could only conclude that there was work for him, at least for that week but that the Respondent wouldn’t contact him.  He submitted that he felt he had been treated unfairly in that instance.

Section 13 of the Industrial Relations Act, 1968

The Complainant submitted that on 20th December 2019 during the course of the working day he was threatened with physical violence by another member of staff.  He submitted that his colleague threw baking equipment at him and threatened to fight him.  The Complainant submitted that he then told the manager’s son Mr. B what had happened and that he had said he didn’t want to do anything about it.  The Complainant submitted that in those circumstances he felt the only option open to him was to go home, he submitted that as he feared the situation was going to escalate, so he went home for safety’s sake. 

He further submitted that he had hoped that Mr. A would contact him to discuss the matter but that this had not happened.  He submitted that when he returned to work a few days later he gave Mr. A a written account of what had occurred.  He submitted that Mr. A had responded that “it didn’t look that bad on camera”

In his submission the Complainant outlined that Mr. A “proceeded to dock my pay for me going home to prevent an incident occurring.”  He submitted that there was no manager on the floor when the incident happened and that it was never mentioned again.

Section 13 of the Industrial Relations Act, 1968

In its initial response received by the WRC the Respondent submitted that “we will not be engaging in the investigation and adjudication of the matter before the WRC, as having considered the matter it is our view that there is not a trade dispute in being and we do not believe there is a case to answer”.

In its’ supplementary submission provided thereafter, the Respondent submitted that under Section 13(2) of the Industrial Relations Act, 1969 an employee may refer a “trade dispute” to the Workplace Relations Commission.  Section 3 of the Act then provides that an Adjudicator may “investigate” the trade dispute with a view to ultimately making a “recommendation” in relation to the matter.

The Respondent submitted that a “trade dispute” is broadly described in the 1969 Act, and encompasses any “dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person”.  The Respondent submitted that in effect, this provision allows any dispute between and employer and an employee to be referred to the Workplace Relations Commission for investigation.

The Respondent further submitted that Section 43 of the Workplace Relations Act 2015 provides for the enforcement of WRC determinations in the District Court and submitted that this provision only applies to legislation listed in schedules five and six of the Act, neither of which allows for the enforcement of a trade dispute under Section 13 of the Industrial Relations Act 1969.  The Respondent submitted that an employer’s failure to object to an investigation within the specified timeframe does not affect this position.

The Respondent submitted that in all these circumstances a recommendation under the Industrial Relations Act 1969 does not serve to create enforceable legal rights or monetary rewards.

In relation to CA-00063084the Respondent drew attention to the Complainant’s position that he was subjected to physical violence/bullying behaviour and to the fact that the Complainant had never raised a grievance with respect to those complaints. The Respondent submitted that the first alert it had of the Complainant’s grievance was when it received notification of his complaint from the Workplace Relations Commission.  The Respondent pointed out, that it was not put on notice or afforded the opportunity to address the alleged matter and the Respondent submitted that it was of the belief that the matter should have been dealt with in the first instance by employing the in-house Grievance Procedure, before any referral to a Third Party.

In relation to CA-00063084the Respondent outlined it’s understanding of the complaint submitted by the Complainant to encompass the following:

·       That the Complainant’s sub-standard or poor performance was challenged by Mr. A

·       That he was told “we have no work for you for now and I’ll ring you when we need you again”

·       That subsequently (2 weeks later) “another member of staff who was on annual leave, was contacted to come in because they were short staffed”

·       That the Complainant was of the belief that there was work there for him but that the Respondent wouldn’t contact him

The Respondent submitted that it was of the belief that the matters should have been dealt with in the first instance by employing the in-house Grievance procedure before referral to a Third party.

In conclusion, the Respondent submitted that it would not be engaging in the investigation and adjudication of the matter before the WC as having considered the matter it continued to be of the view that there was no trade dispute in being and that it did not believe it had a case to answer.

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

Section 13 of the Industrial Relations Act, 1968

All of the issues of concern submitted under this complaint number are also contained in the complaint number ADJ-00042719-002.  In the context that the same complaint should not be adjudicated upon twice I will issue my findings on these matters under ADJ -00042719-002.  No separate findings will issue in relation to ADJ-00042903-002.

Section 13 of the Industrial Relations Act, 1968

Preliminary Matter

I noted the Respondent position that it would not engage in an investigation under the Industrial Relations Act in relation to these matters and that there was no provision to enforce a recommendation of an Adjudication Officer in relation to such a case.  In that regard I have considered carefully my jurisdiction and my obligations in this matter.

I am clear that although the Respondent raised concerns with the WRC in relation to ADJ-00042093-002 not having been dealt with through the Respondent internal Grievance Procedure, it did not submit a form objecting to the hearing of that case.  In relation to the instant case (ADJ-00042719-002) the Respondent did submit the form objecting to the hearing of this matter but did so beyond the timeframe outlined in the legislation.  In that context, I find that I do have jurisdiction to hear this matter.

Based on the above circumstances I am clear that the Complainant has raised a valid complaint under the Act, that no objection to the hearing of that complaint was made within the time limits prescribed and that I have jurisdiction to hear this matter and am therefore obliged to do so and issue a recommendation.  It is a matter for the Respondent to decide their approach to my final recommendation below.

The Substantive Issues

In considering this matter I took into account the information supplied by the parties in the Complainant’s complaint form and in the Respondent’s written submissions and other supporting documentation. I also considered carefully the information provided by the parties at the hearing.

In particular I noted the Complainant’s account of the altercation, which is alleged to have taken place on 20th December 2019, where the Complainant alleged that a colleague threw baking equipment at him.  I noted that the Complainant submitted that he brought this matter to the attention of the Manager’s son and that he left work early as a consequence of no action being taken.

I noted also that when the Complainant returned to work, he brought this matter to the attention of the Manager by providing him with a written account of what had occurred, and I noted his position that the Manager responded “it didn’t look that bad on camera.”  I noted that the Complainant contended that this incident was never mentioned again.

I noted the Complainant’s additional complaints as follows:

·       6th March 2020 - he was issued with a formal warning in relation to an alleged late attendance (on an unknown date) in circumstances where the Respondent put it to him that he had agreed to an early attendance

·       Soon after that the Respondent gave him another letter referring to “recent behaviours” which the Respondent asked him to sign but which he did not

·       10th August 2020 – that the Manager advised him that the pancakes he was making were too thin and that the pancakes had to be binned by another staff member.

·       11th August that the Manager told the Complainant it was taking too long to make his mixes and advising him that he (the manager) could complete double the amount

·       15th August 2020 – that the Manager approached him about the baps not being done correctly, that the Complainant had not made up the baps, but that the Manager’s son had been the person who undertook that work

·       17th August 2020 – The Manager advised him to take a weeks’ annual leave the following week. That at that time the Complainant asked the Manager to check his pancake batter and that the Manager replied “this is ridiculous”

·       8th September 2020 – That the Manager told him to take a weeks’ holidays the following week

·       17th October 2020 – that the Manager approached him 15 minutes before his end of shift and said, “we have no more work for you for now and we will ring you when we need you again.”

·       2 weeks later another staff member was called in from annual leave because the Respondent was short staffed, while the Complainant was not contacted to attend work.

I noted the Respondent position that it would not engage in the investigation of this matter but notwithstanding that position I noted that the Respondent did provide CCTV footage of the alleged incident of 20th December 2019 and pointed to the behaviour of the Complainant as having in some way triggered the subsequent events.

The Respondent did not provide any evidence as to what, if any, investigation it conducted into the matter of 20th December 2019 and it was evident from the information given by the Complainant that the Respondent issued the Complainant with a warning arising from that incident and stopped the Complainant’s pay as a result of him leaving work early on the day of the incident.

In the context that no evidence was given of an investigation and no evidence was given in relation to the holding of a Disciplinary meeting I find that the Respondent did not conduct a full and thorough investigation of the alleged incident and did not follow fair procedures in deciding that the Complainant was at fault nor did the Respondent follow fair procedure in issuing a sanction to the Complainant. 

However, the complaint received is one of bullying. 

In considering whether or not the totality of this complaint falls to be described as bullying I have considered carefully the provisions of the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at work which was drawn up between the WRC and the Health & Safety Authority.  The Code defines bullying as “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could be reasonably regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work, but, as a once off incident, is not considered to be bullying”.

It is clear from that definition that the allegations described by the Complainant might fall within that definition.

However, the Code also sets out the role of an Adjudication Officer in relation to cases referred under the Industrial Relations Act and states that “The provision of Adjudication services under Section 13 of the Industrial Relations Act 1969 following the exhaustion of internal procedures (note: the grounds of a referral to an Adjudication Officer are around the conduct of an investigation in terms of fairness and adherence to fair process and procedure).”

In other words, the role of the Adjudication Officer is not to investigate a complaint of bullying but rather to consider whether or not the employer conducted an investigation into allegations of bullying with fairness and adherence to fair process and procedure.  From the details provided in the complaint form and from the Respondent submission it is a matter of fact that the Complainant complained of the incident of 20th December 2019 but did not make a complaint of bullying in relation to that matter and the subsequent matters complained of in his complaint form.  In that context, the Respondent was not on notice of his concerns of bullying, nor did it have any opportunity to investigate those concerns.

bullying