Complainant

Respondent

Anonymised Parties

A Personal Assistant

A Representative Body

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act, 1969

CA-00053633

9/11/2022

The Complainant commenced employment with the Respondent with effect 7 November 1976.  The Complainant contended that following internal reorganisation in 2017 she was demoted by stealth, that she was deprived of carrying out her role as PA, given minimum work/responsibility and assigned only menial tasks.  She alleged that she was humiliated, degraded, and systematically ostracised, amounting to harassment.  She alleged that she was harassed, discriminated against, and victimised for having previously made complaints and for taking up a staff representative role.  She further alleged that she had attempted to address her complaints through the internal procedures but that she could not get agreement to an independent investigator, nor could she get clarity on the criteria for an investigator.  She alleged that when she sought to escalate the matter through the internal disputes process this avenue was also closed to her as the Respondent would not agree to replace roles of individuals who were unavailable.

The Respondent is a Representative Body.  The Respondent acknowledged the delay in bringing the matter to finality but contended that it had not proved possible to secure the agreement of the Complainant to an independent investigator and that the Complainant was responsible for further delays in relation to scheduling of the WRC hearing.

The Respondent accepted that the Complainant did not receive a contract when initially employed in 2001 but denied all other allegations in relation to breaches of the Act.

The Complainant submitted that she was a long serving employee of the Respondent, with almost 49 years’ impeccable service.  She submitted that throughout her career she held various positions culminating in her appointment to the position of Personal Assistant to one of the most senior positions in the organisation in 2010.  Throughout her career she had maintained an exemplary record as an employee and had applied herself to her work in a professional and diligent fashion.  She submitted that up until 2017 she had not experienced any industrial relations difficulties as an employee, but she submitted, that position had drastically changed in 2017.

In her submission the Complainant set out the change in the structure of the organisation that occurred around that time, and she advised that in October 2017 she was informed by the head of the organisation that she was being transferred to a new position.  She set out that she disputed that decision and that this resulted in a protracted disputes procedure which culminated in a full Labour Court hearing which found in her favour in November 2021.

The Complainant submitted that as PA to one of the senior roles in the organisation she had a varied and important workload but that since she progressed her formal complaint her workload had been completely downgraded and eroded.  In addition, she submitted that in 2018, as a result of re-engaging in her agreed practice of working from home, she was threatened with charges of gross misconduct by another senior manager.

She further submitted that in 2020 she was elected as a staff representative to the internal staff representative body, and this resulted in further erosion of her duties and responsibilities, including exclusion and isolation from the role she would have held as a Personal Assistant.

The Complainant submitted that in March 2022 her staff representative committee set out in a document, in distinct and unambiguous terms, the clear and discernible diminution of her role and responsibilities. She submitted that the document presented a very stark contrast between her previous role and responsibilities and the menial tasks that she was required at that time to undertake on a daily basis.  In addition, she submitted, there was a clear and identifiable correlation between the diminution of her role as Personal Assistant and the pursuit of her legitimate grievances from 2017, and her election to the staff representative committee in 2020.

The Complainant appended a copy of that document which had been issued to the Personnel Officer at that time.  In her submission, she drew attention to the fact that her representative had clearly identified in that document that she, as a result of her employer’s actions, had been demoted by stealth, was being humiliated, degraded and ostracised systematically and confirmed that the Complainant was both distressed and demoralised as an employee.

The Complainant submitted that, given the nature and extent of her complaints and her long and loyal service to the organisation, there would have been a legitimate expectation that the organisation given the particular nature of the organisation and its espoused values, would have dealt with the issues fairly and expeditiously.

In her submission the Complainant outlined that it proved impossible to agree an independent investigator to investigate her complaints and submitted that the process was hampered by the fact that the Respondent would not provide the criteria for selection of an independent investigator.  She submitted that in addition, it was not possible to refer the dispute to the internal joint industrial council as the chairperson was unavailable due to illness and the Respondent would not agree a replacement.  She submitted that this scenario left her with no other option but to refer the matter to the Workplace Relations Commission for adjudication.

In summarising her complaint, the Complainant submitted that she had given a lifetime of loyal and dedicated service to her employer and that her reward for that service had proven to be the absolute and total diminution of her standing, roles and responsibilities, as a direct result of her having objected to what she described as "blatantly unfair and unreasonable treatment” by her employer. She outlined that since 2017, when she initiated legitimate grievances, her role within the organisation had fundamentally diminished and that the systematic removal of her roles and responsibilities was doubled down on by the Respondent following her appointment as a staff representative in 2020.

She further outlined that her role prior to 2017 was as a Personal Assistant to a very senior role in the organisation and was a one-to-one role where confidentiality, personal involvement with that senior manager, and trust, honesty and integrity were paramount.  She submitted that while she continued to maintain those characteristics the Respondent, unfortunately did not. She submitted that, in fact, the Respondent, in dealing with her since 2017 had adopted characteristics that would be associated with the worst of employers. She submitted that she must confirm that her current roles and responsibilities are such that she basically has no work to do of any meaningful nature. 

The Complainant respectfully requested that the Adjudication Officer find that

1.      Her complaints were well founded

2.      That the roles and responsibilities associated with the Personal Assistant position carried out by her be restored in full.

The Complainant also sought that, any recommendation made by the Adjudication Officer should take account of the “horrific treatment” suffered by her, her standing in the organisation and her distinguished service, by awarding her an appropriate level of compensation.

At hearing, in addition to reading the submission into the record, the Complainant confirmed that she believed she had been demoted by stealth and harassed, discriminated against and victimised for making previous complaints.  She described that she and her representatives could not get agreement on an investigator into her complaints, nor could she get clarity on what criterion would apply to the selection of an investigator.  She advised that in an effort to move matters forward her representative had agreed to seek the intervention of the JIC but that, in the absence of the Chairperson and the employee nominee management had been unwilling to replace the Chairperson or to appoint an alternative, in the interim.

In response to my queries as to her objections to the proposed investigator the Complainant confirmed that she objected to the first investigator on the basis that he was a man, and she would have preferred a woman.  She confirmed that of the 3 senior roles in the organisation, she reported to 2 of them and so they could not investigate her complaint.  She stated that management had proposed the third internal person to hear her complaint, but that person had heard her initial complaint.  She stated that the individual in question had found against her in the previous grievance issue, where ultimately the Labour Court found in her favour.  She indicated that she didn’t have confidence in that individual but that she also felt that person should not hear her complaint as they had been involved in the previous grievance process.

The Complainant outlined that her representative had proposed a former senior employee of the organisation, but that management would not agree to that person.

In response to further questions regarding her workload the Complainant confirmed that when the structural changes happened, she had had been informed that she was to be reassigned as PA to 3 senior staff and at that time she sought clarity on what positions were available to all PA’s.  She indicated that she had met with the person responsible for the reorganisation and that he agreed that she would have a second PA assisting her.  She confirmed that ultimately, she was assigned to look after 2 senior managers. 

She advised that from the outset there was a diminution in her workload and the status of that work but that the situation deteriorated significantly after she was elected to the JIC.  She stated that after that date she was denied access to emails.  She confirmed that she had no work to do, that she filled her time with drinking coffee and doing crosswords.  She described how humiliating she found it to be left in that position for such a protracted period of time and how obvious it was to her colleagues that she was being ostracised.

The Respondent submitted that the following sequence of events occurred:

·        That on 19 January 2022, the Personnel Officer was contacted by the Complainant’s Representative, the then Chairperson of the Staff Representative Council, seeking to meet regarding a grievance from the complainant who is employed as a Personal Assistant to two senior managers in the organisation.

·        The Personnel Officer responded on the 24 January 2022 offering to meet on the 31 January which was one of the dates suggested by the Complainant’s Representative.

·        At the meeting of the 31 January 2022 the Personnel Officer explained the procedures which were in place at that time, advising on both the informal and formal options available and of the necessity for a written complaint in the event of an employee choosing the formal option. He also advised of the support options available to colleagues including those available under the Employee Assistance Programme.

·        The claimant’s representative responded on the 9 March 2022 on behalf of the Complainant and in this correspondence made allegations of bullying, harassment, and discrimination on behalf of the Complainant, against senior personnel within the organisation. The Respondent submitted that some of these made reference to a matter which was previously dealt with by the Adjudication Service and the Labour Court.

·        That although the procedures in place at that time simply referenced the investigation of any such complaint, previous matters such as this had been investigated internally, however, the Complainants’ representative suggested the appointment of an external investigator in this instance.

·        That, in an effort to progress matters, an eminently qualified individual was proposed by the Respondent to carry out the investigation into the complaints raised. The nominee was viewed by the Respondent as a person of standing in the world of industrial relations.  However, the complainant’s representative objected to that appointment by the employer on the basis that he was male.

·        That as agreement could not be reached at this juncture, the employer then appointed a senior and highly experienced internal practitioner to carry out the investigation and wrote to the Complainant’s Representative on the 28th of March 2022 advising of same.

·        On the 20th of June 2022 the respondent received correspondence from the complainant’s representative formally rejecting this appointment of the investigator and instead suggested a former employee as their choice of investigator.

·        That there were several exchanges of correspondence between the complainant’s representative and the Personnel Officer (from the 20th of June up to the 15th of July) on the appointment of an investigator. This concluded with the understanding that the issue concerning the appointment of an investigator could be referred to the internal Joint Industrial Council seeking their assistance on this matter

·        That on the 28th of July the Complainants representative contacted the Chairperson of the Joint Industrial Council seeking assistance on the issue of the appointment of an investigator in this instance.

·        That due to the unforeseen illness of the Chairperson and the employee nominee, the JIC was not in a position to hear the matter at that juncture and the complainant’s representative advised of their intention to refer the issue to the Adjudication service on the 15th of September 2022.

The respondent submitted that it received correspondence from the WRC on the 4th of January advising of the referral which was made on the 9th of November 2022. The Respondent drew attention to the lengthy engagement process undertaken with the internal staff representative body known as the Staff Representative Council and advised that on foot of a previous Labour Court Recommendation, a new Dignity at Work Policy was agreed and implemented covering such matters.

The Respondent submitted that the Complainant’s Representative had rejected all reasonable attempts to appoint an investigator and that due to unforeseen circumstances it had not been possible to secure the input of the JIC.  However, the Respondent pointed out that the JIC was now functioning following the recovery of both the Chairperson and the employee nominee and that agreement had been reached on a new Dignity at Work Policy which included a list of agreed investigators.  The Respondent submitted that these factors would assist the parties in bringing this matter to a conclusion and expressed a wish to do so as quickly as possible.

In summary, the Respondent submitted that it believed that it had acted in a fair and reasonable manner in its dealings with the Complainant and her Representatives.  It further submitted that it recognised the Complainant’s right to utilise the agreed dispute resolution procedures and that it had attempted to facilitate same through the appointment of an investigator into the allegations.  The respondent submitted that following a lengthy engagement process with the SRC it had agreed an updated Dignity at Work Policy to deal with issues such as those raised by the Complainant.  The Respondent noted it’s disappointment that the issues remained unresolved but submitted that it believed that the continual objection to the appointment of an investigator had contributed to any delays experienced.  The respondent asked that the Adjudication Officer find in its’ favour.

In addition to reading its submission into the record the Respondent advised that the Complainant and her Representative had obstructed efforts to establish an investigation into her complaints.  The Respondent confirmed that when agreement was reached to seek the assistance of the JIC, the Chairperson and the employee representative were out sick for a lengthy period.  The Respondent advised that the Complainant was held in high esteem and had been a highly competent and efficient employee throughout her years of service. 

In response to queries from me the Respondent confirmed that at the time of the restructuring the non- administration staff had been required to change their areas of work and that they had been advised on the options available to them and that they had been allowed to state their preferred option.  The Respondent accepted that this had not been applied to the administration staff.  I sought clarity from the Respondent as to why it had objected to the appointment of the Complainant’s preferred investigator and those representing the Respondent were unable to provide any explanation, other than to say that person was not acceptable.

I also sought clarity from the Respondent in relation to the exact periods when the key individuals on the JIC were absent due to illness.  The Respondent was unable to verify dates at the hearing but undertook to provide details post hearing.

Further to the Complainant outlining how she filled her days while at work I queried with the Respondent what steps it had taken as her employer to identify what work she was doing on a daily basis.  The Respondent confirmed that they had not taken any additional steps other than to seek to establish an investigation into her complaints.

The Respondent suggested that, in circumstances where there was now an agreed Dignity at Work Policy in place and where that included a list of agreed investigators, that the parties could now proceed to investigate the Complainant’s grievances under that policy and appointing one of those named investigators.

The Respondent confirmed that this policy had been finalised in April 2023.  The Complainant Representative put it to the Respondent that it had never made any approach to the Complainant to utilise one of those investigators or to address her complaints through that policy.  The Respondent accepted that it had not.

Subsequent to the hearing, the Respondent confirmed in writing that that the Chairperson of the JIC was notified on 28 July 2022 that the Complainant was requesting a hearing on the appointment of a female investigator, that a response was received from JIC Chairperson, outlining that he was recently hospitalised but now home dated 22 August 2022. The Respondent also confirmed that the Chairperson was further hospitalised in September 22 for a number of weeks due to illness and was rehabilitating for a number of weeks thereafter, that the Employee representative on the JIC was then unfortunately out sick from 4 October 2022 until 6 May 2023 and that the matter was referred to the Adjudication service on 9th of November 2022.

I have considered carefully the submissions provided by both parties and the evidence and representations at hearing.

From the submissions provided and the additional clarification provided by the parties at hearing I noted the following areas which were undisputed:

·        that the matters relating to the initial reassignment of the Complainant have already been dealt with by the Labour Court and do not form part of what I must consider.  Those matters merely serve as a context to the issues that subsequently arose.

·        that the Complainant noted an immediate change in her workload and the status of the work undertaken by her following the restructuring in 2017. It is also clear that she processed a dispute with her employer at that time at that the matter was addressed in a Labour Court recommendation

·        that the Complainant continued to have concerns about further diminution of her role and that after she was elected as a staff representative in 2020, she found herself being denied access to information that formed a core part of her job. 

·        that she raised concerns informally in the first instance and ultimately in March 2022 her representative put her concerns in writing. 

·        that the Respondent sought to have her complaints investigated and nominated an independent highly qualified person to conduct the investigation

·        that the Complainant objected to that investigator

·        that the Respondent nominated another internal person to conduct the investigation and that the Complainant again objected to that person

·        that the Complainant then proposed a former senior employee of the organisation as someone who would be acceptable to her, and the Respondent rejected this proposal

·        that the parties agreed to seek the assistance of the JIC in reaching agreement on an investigator but that the Chairperson and the employee representative were both absent due to illness and were not available

I noted the Complainants objection to the first investigator proposed by the Respondent, and I consider the gender basis for that objection to be unreasonable.  The gender of any individual should not be used to object to an investigator except in circumstances where there are matters of a sensitive nature to be considered. That was not the case in this instance.  In those circumstances I consider that the Complainant was unreasonable in her objections.

I noted the Complainants objection to the second investigator proposed and in this instance her objections were well justified.  The person proposed was a colleague of the 2 other senior staff who were the subject of her complaint, and she was a person who had not upheld a previous grievance that was ultimately upheld by the Labour Court.  The very fact that she had heard the previous grievance, which was clearly related to the current complaint, should have given the Respondent pause for thought.

I noted the Respondent objection to the investigator proposed by the Complainant, and I noted that the Respondent could provide no explanation as to why this person was not acceptable.  I consider this to be a poor response from any employer.

I was particularly struck by the Complainants’ account of her daily activities (or lack thereof) and at the Respondents inability to confirm if it understood that the Complainant had been left with no work.  I was also particularly struck by the Respondent position that this matter could not be considered by the Respondent pending the establishment and completion of the investigation.

I noted that the Respondent referred to the absence of key individuals from the JIC as being significant in prolonging the process and I noted the post hearing submission where the Respondent advised

·        that the Chairperson of the JIC was notified on 28 July 2022 that the Complainant was requesting a hearing on the appointment of a female investigator

·        That a response was received from JIC Chairperson, outlining that he was recently hospitalised but now home dated 22 August 2022

·        That the Chairperson was further hospitalised in September 22 for a number of weeks due to illness and was rehabilitating for a number of weeks thereafter.

·        That the Employee representative on the JIC was then unfortunately out sick from 4 October 2022 until 6 May 2023.

·        That the matter was referred to the Adjudication service on 9th of November 2022.

I noted that the Respondent remained vague about the dates of absence of the Chairperson to the effect that it appeared there may have been a cross over between the absences of both key individuals.  Nonetheless, I noted that the complaint was first confirmed in writing in March 2022 and the WRC hearing in the matter took place in July 2024.  I consider, that notwithstanding the prolonged nature of the above absences, they do not provide adequate explanation as to why an employer would fail to make even the most rudimentary enquiries into a complaint where an employee had clearly outlined that she had no work to do.   In the interests of her wellbeing at work I consider that the Respondent had an obligation to ensure that she was occupied in meaningful activity while at work and the Respondent failed to do so.

I noted that the Respondent referred to the postponements of previous WRC hearings at the request of the Complainant Representative and pointed to these delays as further cause for its delay in addressing the Complainants grievances.  While I accept that there was an unusually high level of postponements in this matter, I noted that valid reasons were provided on each occasion, and I noted that no objection to those postponements was ever received from the Respondent.  It is noteworthy that despite those delays and despite the fact that the Respondent had an agreed Dignity at Work Policy, including an agreed list of investigators, in place by April 2023 the Respondent confirmed that at no time in the intervening period did it may any attempt to engage with the Complaint and/or her Representative to seek to progress matters in accordance with that policy.

Taking all of the above into account I find that the Complainants complaint is well founded.

I have found that the Complainant’s complaint is well founded.  I recommend that the Respondent engage with all parties to the Complainant’s complaint to agree under which policy the complaints will be processed.  For the avoidance of doubt, If agreement cannot be reached, then it is clear that, the Complainant is entitled to have her complaint heard in accordance with the policy under which it was initially submitted.

In addition, the Respondent must agree with all parties involved, on an independent investigator to consider the complaints fully.  This process should be complete within 4 weeks of the date of this recommendation.  As part of the terms of reference for the investigation, the Respondent must set down clear and reasonable timelines for the completion of the investigation.

In the interim, the Respondent should engage with the Complainant to restore to her, work of an equivalent value to that which has been eroded, particularly since her election to the staff representative role.  This engagement should also be completed within 4 weeks of the date of this recommendation.

I was acutely aware of the distress of the Complainant and of the impact that these events have had on her wellbeing.  In that context I recommend that the Respondent pay the Complainant the amount of €15,000 for its failure to address her complaints in a timely and reasonable manner and for its failure to project her wellbeing in the workplace.  In setting this amount I have taken into account the Complaints contribution to the delays.