Worker

Employer

Anonymised Parties

Office Worker

Chemical Wholesaler

Representatives

  self

Orla O'Leary DLA Piper

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 - 00002400

22/03/2024

This dispute was previously referred to the Commission and a hearing held on 24th of July 2024.

At that hearing some progress was made in reaching a settlement to this trade dispute.

However, after the hearing those terms were not accepted by one party and the matter was referred back for hearing.

However, in the intervening period an appeal meeting/investigation was held and concluded.

The Employer stated that as a separate and distinct procedure had been initiated and concluded since the last day of hearing; the previous referral and issues detailed had materially changed. They stated that they were not on notice of any new matters from the worker even though the grievance procedure had significantly advanced. The worker has not detailed what aspect of that procedure was inadequate.

It is also the case that a referral to the Commission is normally heard after the internal procedures have been exhausted.

This dispute relates to alleged bullying by a manager of this worker.

The relevant section of the Code SI No 674/2020 is:

4.2.1 Formal Complaint

The complainant should make a formal complaint in writing that should be signed and dated. Where this is not possible, a written record should be taken of the complaint by the assigned person and signed by the complainant and dated.

The complaint should be confined to precise details of alleged incidents of bullying, including their dates, and names of witnesses, where possible.

The complainant and the respondent should be advised of the aims and objectives of the formal process, the procedures and approximate ideal timeframe involved, and the possible outcomes. Both parties should be assured of support as required throughout the process.

An initial meeting should be organised by the employer at which each person is met with separately, starting with the person making the allegation. The other party, when met with, should be given a copy of the complaint in full and both should be given any relevant documents including the company Anti Bullying Policy.

4.2.2 Investigation

The investigation should be governed by terms of reference which should include the following:

• The investigation will be conducted in accordance with the employment’s Anti Bullying Policy which should reflect this Code of Practice.

• An indicative timescale for its completion - this timeframe should be proposed, and its rationale explained.

• The scope of the investigation, sets out the procedure to be adopted for findings of fact related to the complaint and a statement that the investigator will consider, based on the facts before them whether the behaviour(s) complained of, on the balance of probabilities, have occurred.

• Confidentiality of the process should be emphasised to all concerned.

All parties to the process have a responsibility to participate without undue delay in any investigation initiated in response to an allegation of bullying.

The scope of the investigation should indicate that the investigator will decide based on the facts before them whether the behaviour complained of may, on the balance of probabilities have occurred. The investigator should not uphold or dismiss the allegations and/or suggest or impose sanctions.

Statements from all parties, including witnesses should be recorded in writing as the use of written statements tends to make matters clearer from the outset and maintains clarity throughout the investigation. Copies of the record of their statements should be given to those who make statements to the investigator. Copies should also be provided to the complainant and the person complained of and should result in findings of fact only.

If possible, all parties should continue to work normally during the investigation.

The objective of an investigation is to ascertain whether, on the balance of probabilities, the behaviours complained of occurred, it having already been established that the behaviours come within the description of workplace bullying. Details of the complaint, responses of the person complained of, witness statements and other relevant evidence are relied on for this purpose.

The investigation should be conducted by either a designated member(s) of management (as outlined earlier in this Code) or, if necessary, (for example in the case of any possible conflict of interest) an independent third party. In either case, the person nominated should have appropriate training and experience and be familiar with the procedures involved. 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 investigator should meet with the complainant and the person complained of and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts.

A work colleague or employee/trade union representative (provided the person has representation in line with the principles of natural justice and fair procedure) may accompany the complainant and the person complained of, if so desired.

The investigation will consider all material and evidence before it and a decision will be made on balance of probability, as to whether the complaint is valid. If the investigator concludes that the accused employee has a case to answer on the balance of probability, then the investigator may recommend whether or not the employer should invoke the Disciplinary procedure.

4.2.3 Appeals

Within the workplace formal system, an appeals process for both parties should be in place. The reason for the appeal should be outlined in writing to management if such an option is being taken. The time period for an appeal should be specified in the policy. The appeal should be heard by another party, of at least the same level of seniority as - but preferably more senior than - the original investigator. This party should have had no involvement in the investigation. The appeal should focus on the conduct of the investigation in terms of fair process and adherence to procedure. It should be noted that an appeal is not a re-hearing of the original issues. The outcome of the appeal shall be final insofar as the employer duties under health and safety legislation is required.

Very small and micro organisations will need to consider at the outset of the formal process how they would manage a request for appeal and this may require outside independent support.

The Worker does not appear to be aware of the Code and the steps detailed as part of the grievance processs and any subsequent investigation.

While the Worker is not happy with the grievance process, she has not detailed what aspect does not meet the requirements as detailed in the code of practice. As the Employer is not aware of the specific alleged deficiencies in how the process has been handled; they argue the internal procedures have not concluded and it is not appropriate to for the dispute to be heard.

The Worker has not detailed her complaint so that her Employer could know what issue arises concerning their implementation of their Grievance process as it relates to the Complainant’s alleged bullying complaint.

The internal grievance procedure has advanced to the next stage and concluded. It is not clear to them what this referral is about, and they are not on notice of what deficiencies in the grievance procedure are now complained about. As that is a basic requirement to assist in the resolution of a dispute it is not appropriate for the matter to be heard.

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

It is clear that the Worker was not aware of the code and what obligations are required from both parties as the grievance is processed internally and a resolution sought to what is perceived to be a serious case of bullying. As the internal process has not concluded and the Worker has not specified what deficiencies exist in the process now being adopted to hear her grievance, it is not appropriate for the hearing to proceed. For these reasons I decline jurisdiction.

Bullying Code-Internal Procedures