Worker

Employer

Anonymised Parties

A Manager

A Nursing Home

Representatives

 Self Represented

MHP Sellors LLP Solicitors

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 - 00002373

19/03/2024

The Worker alleged she was bullied at work by a Manager. She alleged the initial internal investigation into her complaint was flawed and she appealed the outcome and sought that the external independent investigation into her allegation, which had begun but ceased due to the unfortunate death of the Investigator,  to be concluded by a new Investigator.  The Worker and Manager no longer work for the Employer.

The Worker was employed as Financial Manager for approximately 8 years (party with a company which was taken over by the current Employer).

The Worker maintained she was bullied by Ms. K over an incident in May 2022.

The Worker raised an internal grievance in May 2022.

The incident involved who should be purchasing table clothes.

The Worker stated she resigned her employment in June 2022

The Worker disagreed with the internal report findings into her allegation which found the matter to be primarily an interpersonal issue.  The Report was issued in September 2022.

The Worker advised she was not interviewed as part of this internal investigation process into her grievance.

The Worker appealed the decision of the internal investigator and an external investigator was appointed and the appeal was ongoing when unfortunately the external appeal officer died in January 2024. No report was issued at the time of the external Investigators death.

The Worker sought that a new eternal Investigator be appointed to either commence a new investigation or review the documents available and prepare a report based on the documentation.

The Employer rejected the claims made and submitted that the proper procedures were followed at all times in accordance with applicable legislation and the company's policies on workplace conduct.

As a preliminary issue the Employer relied on WRC decision A Worker v An IT Solutions Company (IR-SC-0001929) wherethe adjudication officer concluded as follows:

“The objective in a referral of a dispute under the Industrial Relations Act 1969 is to assist the parties wherever possible in resolving workplace issues.  The Worker is no longer in the Employer’s employment and, having regard to all the circumstances, I recommend that this dispute should now be regarded as closed.”

It was the Employers submissions that as the Worker is no longer employed by the Employer as such this dispute should be regarded as closed.

In the event that the Adjudicator was not agreeable with the preliminary issue, the following provisions should apply. 

The Employer acknowledges that the Worker has been employed by the company in the capacity of Financial Manager since January 2021. Over the course of employment, there have been multiple interactions between the Worker and colleagues, but the Employer maintains that no incidents constituting bullying or harassment, as defined under Irish law, have taken place.

To address the claims, they outlined the key events as follows:

The Worker was initially employed by another employer since 2014. The business was transferred to the Employer in or about 2019 where under TUPE Regulations Worker’s employment was transferred to the Employer. 

On or about August 2020 the business of the Employer were leased to the Worker and an associate.

On or about January 2021, due to poor HIQA Reports and issues with the management of the nursing home, the Employer took back the management and operation of the Nursing Home. The Worker continued working for the Employer as a Financial Manager thereafter. 

On or about 28th of April 2022 a meeting took place between the Worker and the representatives of the Employer to discuss the outstanding rent due.

The alleged incident occurred on 4th May 2022 whereby a dispute over the absence of new tablecloths for tables in the dining room allegedly escalated. A meeting took place between the Worker and the Regional Manager, Ms K It is alleged by the Worker that Ms K  behaved in an aggressive and bullying manner towards the Worker. 

Ms. H, the registered provider representative and company director spoke to the Worker by phone on 5th May 2022 and the Worker’s version of the incident was outlined.

A subsequent meeting with Ms H and another company director, was held on 9th May 2022. Efforts were made to retain the Worker in employment including an offer of continuing employment where there would be no contact between the Worker and Ms. K.  These efforts were dismissed, and the Worker resigned at this meeting. The resignation was formally confirmed by an email on 11th May 2022. 

A formal Grievance was lodged with the Employer on 22nd May 2022. A further phone call between the Worker and Ms. H occurred on the 27th May 2022 with a request made to withdraw the resignation and said request was rejected.

An investigation commenced with findings being made available to the Worker on 2nd September 2022. 

The findings of the investigations were subsequently appealed by the Worker on 24th October 2022. No appeal report was produced as a result of a sudden death of the appeals officer.

WRC complaint was submitted on 19th of March 2024.

Pursuant to Safety, Health and Welfare at Work Act 2005 (as amended), workplace bullying is defined as repeated inappropriate behaviour, direct or indirect, that undermines an individual’s dignity at work. According to the Code of Practice for Employers and Workers on the prevention and Resolution of Bullying 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. While it is the Employers position that the alleged one-off incident was no more than a clash of personalities rather than bullying and harassment and the said code shows that in any case the alleged incident does not meet the parameters to be deemed bullying. 

Harassment is any unwanted behaviour related to one of the 9 discriminatory grounds covered by the Employment Equality Acts 1998-2015. The behaviour must be repeated, inappropriate, and must undermine the victim’s dignity at work.

The Employer submitted that the behaviour alleged by the Worker does not meet this threshold for the following reasons:

No prior incidents have been reported to the Employer.

The Worker has not demonstrated that any behaviour was repeated or of a serious nature.

There has been no infringement on the Worker’s dignity or rights in the workplace.

There are no grounds under the Employment Equality Acts that are applicable to the alleged incident and the Worker has not invoked such Acts in her complaint.

The Worker’s claim is based on one alleged incident.

The Employer submitted that the Worker’s version of events is inaccurate and does not meet the requisite standard for bullying and harassment. On 4th May 2022, an informal meeting occurred between the Worker and Ms K, Regional Manager. The meeting concerned tablecloths for the dining room in the nursing home. Disagreement arose between the parties due to the Worker endeavouring to secure the cloths during her free time and Ms. K wanting the task to be delegated to other staff during work hours.  Concerns were raised over insurance policy cover with regard to sending other staff to purchase the goods. The Employers position was that Ms. K was correct in that the cloths needed replacement immediately given the risks to residents from a clinical and infection control perspective.

 Further complaints were raised by the Worker in her grievance complaint regarding a diary being used by the Worker every thirty minutes so as to keep records as she was in a management position. The Employers position is that there should have been no such issue with this position given that it is important that contemporaneous notes were kept in a management role as they may be required in a legal context with regard to residents at any point. It was the Employers position that the alleged incident was more down to personality clashes between the respective parties.

In all cases, the Employer asserted that any interactions between the Worker and other Workers or management were carried out in a professional and appropriate manner.

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

The complaint is taken under the Industrial Relations Act and all Recommendation from an Adjudicator are based on the voluntary system of industrial relations. The purpose of a Recommendation is to try and find a mutually agreeable way forward, if possible, to resolve the dispute. The initial causes of this dispute may be linked to certain issues between the parties but it strikes the Adjudicator from the submissions that it must also consist of some interpersonal issues. Both the Worker and Ms. K are no longer working with the Company. Some of the staff involved in the internal investigation report are no longer working at the Company. At the Hearing I broached the Workers proposal of a new external investigation with the Employer and they felt this would be a futile exercise due to the two Workers no longer being employed and with the passage of time they felt that any outcomes were no longer material since both Workers had left their employment. They were not agreeable to fund a further investigation.   I asked the Worker what was her purpose in bringing the dispute to the WRC and she stated, in addition to getting the investigation properly concluded, that it was not monetary and she did not want anything on her record that would impact her getting new employment. It seems the Worker has not worked since she left the Employers employment. Nothing was provided to the Hearing that suggested the Employer was being a block to the Worker getting new employment. The Employer stated they were willing to provide the Worker with a reference and stated they would not give any negative comments if called for a reference by a potential employer.

I can understand the Workers frustration at not being interviewed by the Internal Investigator (just her statement was considered) and this means the initial investigation was flawed. This means that the starting point for any new external investigation would also be flawed. Overall, I see no practical value in recommending a new investigation or for an Investigator to review the work done by the deceased Investigator, as it would be fraught with practical difficulties especially given the two key staff have left the employment at this stage (and the participation of the ex Manager is not guaranteed) and as so many key staff to the investigation have also left the organisation. Overall given the circumstances presented to me, I find it would be an unfeasible industrial relations option to recommend a new investigation.

 I recommend that the Employer issue a  written reference to the Worker and the parties consider the trade dispute as closed and unresolvable given the particular circumstances of this case.

Trade Dispute