Worker

Employer

Anonymised Parties

A Worker

A Policing Organisation

Representatives

 Representative Association

Employee Relations Bureau

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 - 00001891

18/10/2023

A complaint of bullying was made against the worker and the worker submitted that the employer breached procedures. There was a large volume of documentation submitted which I reviewed but I don’t believe it is necessary or appropriate to refer to every document submitted in this recommendation.

The worker submitted that there were formal allegations made against him by Ms X around 2018 under the employer’s Working Together to Create a Positive Working Environment.  Allegations were also made against other workers.  There had been previous allegations back in 2008 and the worker had reported issues in 2012.  Mediation took place in 2014 and 2015.  Ms X assaulted the worker in 2016 and a result the worker went on sick leave.  Ms X received an adult caution as a result of this incident. The worker in 2016 was transferred to another station which was not requested by him and appealed.  Following the allegations in 2018 the worker sought to have the complaint investigated externally but this was not facilitated.  Various correspondence was sent to the worker advising that the investigation was continuing but more delays arose.  Extensions were granted on a continuous basis during the investigation, but the worker’s permission was never sought with regards to granting such extensions which was a clear deviation from policy.  Furthermore, the employer failed to review the complaint within 28 days of being received in further breach of the employer’s procedures. 

It was submitted that the employer breached the principles of natural justice in failing to carry out a reasonable, fair and thorough investigation.  The employer has furthermore failed to provide the worker with relevant information and failed to provide the results of an initial investigation and the worker has been advised that a copy of it has been misplaced.  Ms X left the organization and the investigation, therefore, ceased after 4.5 years.  The employer failed to comply with timelines, failed to report findings within 28 days, and failed to give adequate reasons for the decision of the partly investigation report.

Case law cited included McCormack v Garda Siochana Complainants Board, Adj-00028887 A Member v A Policing Authority, McNeil v The Garda Commissioner, IR SC 00000324 A Worker v A Policing Service.

The worker submitted a grievance on 23/04/2023 regarding the management of a complaint of bullying made against him by another worker.          Stage 1 of the grievance was held on 16/05/2023, which upheld the grievance that timelines had not been adhered to but did not award compensation and the outcome was appealed by the worker, Stage 2 was held on 11/07/2023 and the outcome was appealed by the worker and stage 3 was held on 18/08/2023.  It was submitted that the worker was transferred in line with the employer’s policy.  The employer acknowledged the delays were unacceptable and that some of the delays were owing to the worker commencing legal proceedings.  The worker was never suspended, therefore, there was no financial loss.  As a senior person was not happy with aspects of the investigation it was necessary to have another senior person to finalise the investigation.  A copy of the report cannot be located at one branch but there is a copy at HQ.  It was submitted that there was no case for the worker to answer to as Ms X has left the organization, that the employer accepted that the delays were not acceptable and that the employer acted in accordance with generally accepted standards in their investigation and grievance process thereafter.

Case law cited included Bord Gáis Eireann & A Worker AD1377.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  There was a large volume of documentation submitted which I reviewed but it is not necessary or appropriate to refer to every document submitted in this recommendation.

Following an allegation of bullying by Ms X against the worker, an investigation took place under the employer’s Working Together To Create A Positive Working Environmentpolicy which clearly sets out timelines and the procedures that apply when allegations of bullying has been made.  Ms X also made allegations against other workers.

The worker outlined the significant upset caused by extensive delays and the manner in which the investigation took place.  He also outlined that the unrequested transfer impacted negatively on him and his family and that he endured an investigation that lasted 4.5 years.  The employer accepts that there were delays but that the worker did not endure financial loss and submitted that transfers are provided for within their policies.

It was undisputed by both parties that they pride themselves on ensuring the application of the law to those they serve in the community.  However, what strikes me in this instant dispute is that the employer allowed clear breaches of Statutory Instrument S.I. No. 17 of 2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace, namely by failing to ensure that :

“The investigation should be conducted thoroughly, objectively with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).”

During the investigation, this statutory code was amended by 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 which the employer also breached:

“The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the person complained of.”

The employer allowed further breaches under Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which sets out:

“Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.”

The employer’s own Code of Practice was also breached which outlines that

“Extensions to the time limits outlined are acceptable once there is clear justification and both the complainant and the person complained of have indicated that they have no objections to the extension. It is important to maintain a record with reasons for the delay in time limits”.

The “person complained of” in this instant dispute, namely the worker, was not asked to give an indication as to whether they had any objection to extensions of time limits that were allowed.

And further breaches of the employer’s policy were evident when the employer failed to ensure that:

“Theinvestigation … be conducted thoroughly, objectively, with sensitivity, utmostconfidentiality, and with due respect for the rights of both the complainant and the personcomplained of. The investigator will report their findings within 28 days of the complaint beingreceived at the Divisional office”

The employer failed to review within 28 days of the complaint being received and failed in their delays to conduct the investigation with due respect for the rights of both the complainant and the personcomplained of.  Itseems extraordinary that the investigation only came to an end 4.5 years later and this appears to be only because of Ms X departure from the organisation.

I note that the worker in this instant case, similarly to LCR22562HSE v A Worker:

“…was severely let down by the Respondent in all of this having regard both to the protracted period of time that elapsed….and to the Respondent’s failure to follow its own procedures or any procedure, in particular its total disregard for the timeframes indicated in the terms of reference agreed for the investigation.”

Taking into consideration all the submissions and detailed appendices, that I have reviewed, I recommend the following:

1             The employer should communicate in writing to the worker, as a matter of urgency, their profound unhappiness and regret in the short comings of the investigation. The employer should also acknowledge that there was no finding against the worker and that the employer has full confidence in the worker as members of the employer.

2             The employer should ensure that their policy Working Together to Create a Positive Working Environment meets statutory requirements including of 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 that all engaged in investigations such as the one that the worker had to undergo, are aware of their procedures and time frames and responsibilities and that where necessary appropriate training is given.

3             While it would appear that the transfer of the worker was carried out in line with the employer’s policy, I would recommend that for such unrequested transfers, the employer should ensure that in line with the employer’s policy, workers are notified in advance of the transfer and the reason for such transfers and I would also recommend that the employer carries out such transfers in line with industrial relations norms.

4             As the employer has confirmed that there was no finding against the worker, any reference to this investigation should be expunged from the worker’s personnel file.

5             Owing to the unique circumstances of this dispute, compensation of €8,000 should be awarded to the worker, owing to significant failures by the employer in ascertaining whether the worker had objections with extensions to the time limits, as per their policy.

6.            Owing to the unique circumstances of this dispute, compensation of €10,000 should be awarded to the worker, owing to significant failures by the employer with regards to the inexplicable time delays over 4.5 years in breach of the employer’s policy, and breaches under relevant Statutory Instrument over the 4.5 years including S.I. No. 17 of 2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace,  Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, Statutory Instrument SI. 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.

Taking into consideration all the submissions and detailed appendices, that I have reviewed, I recommend the following:

1             The employer should communicate in writing to the worker, as a matter of urgency, their profound unhappiness and regret in the short comings of the investigation. The employer should also acknowledge that there was no finding against the worker and that the employer has full confidence in the worker as members of the employer.

2             The employer should ensure that their policy Working Together to Create a Positive Working Environment meets statutory requirements including of 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 that all engaged in investigations such as the one that the worker had to undergo, are aware of their procedures and time frames and responsibilities and that where necessary appropriate training is given.

3             While it would appear that the transfer of the worker was carried out in line with the employer’s policy, I would recommend that for such unrequested transfers, the employer should ensure that in line with the employer’s policy, workers are notified in advance of the transfer and the reason for such transfers and I would also recommend that the employer carries out such transfers in line with industrial relations norms.

4             As the employer has confirmed that there was no finding against the worker, any reference to this investigation should be expunged from the worker’s personnel file.

5             Owing to the unique circumstances of this dispute, compensation of €8,000 should be awarded to the worker, owing to significant failures by the employer in ascertaining whether the worker had objections with extensions to the time limits, as per their policy.

6.            Owing to the unique circumstances of this dispute, compensation of €10,000 should be awarded to the worker, owing to significant failures by the employer with regards to the inexplicable time delays over 4.5 years in breach of the employer’s policy, and breaches under relevant Statutory Instrument over the 4.5 years including S.I. No. 17 of 2002 - Industrial Relations Act 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace,  Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, Statutory Instrument SI. 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.

Policies, bullying, timelines, procedures