Worker

Employer

Anonymised Parties

Registrar

Public Body

Representatives

Mr Rory Treanor, B.L., instructed by Crushell  & Co Solicitors

Employee Relations personnel.

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 - 00001315

25/04/2023

The worker has referred a dispute concerning the failure of the employer’ to uphold a complaint against a colleague and to, furthermore, deny her career progression opportunities.

She commenced employment with the employer in 5/11/2021,

The worker earns €51,221 per annum.

She referred her dispute to the WRC on 25/4/2023.

The worker is employed at a grade 4 level in a public body.

The worker’s dispute is the stated inadequacy of the employer’s response to a complaint which she presented to her manager on the 20 and 23/12/2019, about the conduct of her supervisor, Ms X, who hit her on the head with two files on 19/12/2019 necessitating a visit to her GP. The employer undertook an investigative process under the auspices of the disciplinary procedure but failed to uphold the worker’s complaint that she was assaulted by the colleague. This resulted in the complainant being on sick leave with a loss of salary and pension contributions. She was deemed fit to return in June 2022.

Her dispute also comprehends the refusal of the employer to appoint her to a role of officiator

She is seeking a fresh investigation into her complaint due to the defects in the process.

The colleague Ms. X admitted that she may have tipped the worker but later withdrew this admission.

The complaint was logged on 20/12/2019 with her manager. She sent a further and more elaborate email on 23/12/2019. The investigation into her complaint commenced with an interview with the complainant on the 29/4/2020 and a further interview on the 8/9/2021. The last witness was interviewed on 11/11/2021. The interview with Ms. X occurred on 15/12/ 2021. The worker submitted her response to the draft report. No meeting was held to discuss her response.  No weight was attached to her submission, and it did not alter the employer’s conclusions one whit.

A final report issued on 14/4/2022.  It took the employer two and a half years for the employer to conclude the process.

While she accepts that Covid prevented face to face meetings, there was no prohibition on on-line meetings.

One witness stated that the worker may have been drinking and this was not corrected.

The worker maintains that the assault and the investigation process were widely discussed in the workplace and the employer failed to respect her right to confidentiality in contravention of their own policies

The employer also failed to consider other incidents of bullying type treatment experienced by the worker.

The employer engaged in a fundamental unfairness, in that they failed to give appropriate weight to the evidence particularly that the assault happened, and to the medical evidence supporting the complainant’s complaint of an injury to her head. It recorded bruising on her scalp.

The worker contends that the respondent has not provided her with a workplace imbued with dignity and respect, that her reputation has been tarnished, her physical and mental well-being negatively impacted and that she has suffered significant financial loss as a consequence of the employer’s negligence.

 She asks the WRC to set aside the employer’s conclusion, uphold her complaint that she had been assaulted by a colleague, and recommend the initiation of a new investigation. 

The complainant failed to instigate a complaint under the Dignity at Work policy or under the Grievance Procedure.

The worker’s complaint was logged on 23/12/2019.

The employer’s investigation team investigated the worker’s complaint that she had been assaulted by a colleague under the auspices of the disciplinary procedure and in accordance with the agreed terms of reference. The investigation commenced with an interview with the complainant on the 29/4/2020 and a further interview on the 8/9/2021.

 Presented with two conflicting reports of what had happened and with 5 witnesses interviewed, they did not uphold the complaint.

The National Investigation Team and all HR personnel were diverted away from their usual functions and assigned to deal with the Covid 19 pandemic.

A cyber-attack occurred in May 2021 also contributing to the delay in the investigation and for a period of 4- 5 weeks the employer could not access HR files.

The employer states that it is not the job of the adjudicator to second guess the conclusions of the investigation process. The worker was given every opportunity to have her issues dealt with.

She was paid in line with the employer’s sick leave policy. If she believed that her sick leave was work related, the Industrial Relations Act, 1969 is not the route to remedy that matter.

The employer rejects the assertion that the subject of the complaint tried to influence those witnesses investigated during the course of the investigation.

The reference to having taken drink must be seen in the context that it only appears as a witness statement appended to the Investigation report, and that report and appendices was confidential to the worker and the employer.

Concerning the role of officiant, the employer stated that it was a position for a grade one level above her own. He explained that an employee is invited by a manager to take on the role.

The employer asks that the WRC accept the Final Report of the investigation into the worker’s complaint against Ms. X.

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

The worker has asked that I accept that the conclusions of the investigation team of 14/4/2022 failed to comply with their own procedures, failed to do justice to her complaint, and asks that I recommend a further, new investigation.

The worker also wants to be considered for the officiant -type position.

The investigation was conducted according to the terms of reference, agreed between the worker and the employer, with the exception that the starting date and end date could hardly be said to constitute a timely process. The worker asks me to upend this report on the basis of her genuine belief that her report of what happened is the correct version, plus on the basis of defects in the process. The employer, presented with two conflicting versions and none of the witnesses corroborating the worker’s version of events, did not uphold her complaint.

The worker believes that her previous unprocessed complaints about the supervisor should have been included in the investigation. But the agreed terms of reference were confined to the incident of 19/12/2019. She did not activate a complaint of bullying, using the procedure, which may have allowed for greater scrutiny of Ms X’s behaviour but also would have provided Ms X with an opportunity to address these complaints.

I am unable on the basis of the evidence presented at the hearing to recommend a rejection of the report and recommend a further investigation

The conclusions arrived at are an entirely difference matter to the process used and its defects. The draft report, unchanged by her response to it was not acknowledged by the employer nor was any of its content referenced in the Final Report.

In addition, the worker objected to the reference by one of the witnesses – a manager- that she may have been drinking when she emailed her manager on the 22 December. This did not appear in the Final Report. However, the purpose of the investigation was to investigate the incident of the 19/12/2019, and not to entertain speculation about the worker’s motives or disposition at the time.

Even with factoring in the Covid 19 pandemic and cyber-attacks, the process was not timely.

The worker gave details on 7 colleagues of the same grade as herself performing an officiant type role which is a career development opportunity. The worker enquired if she could go on the list for assignment to this role and one of her managers told her there were too many people on the list.

In settlement of this dispute, I recommend that

1.                   The employer pays to the worker the sum of €1000 due the delays in the investigation, and also because of the permission given to a witness to raise a matter extraneous to the incident of 19/12/2019 which was hurtful to the worker  and was recorded.

2.                   The worker be placed on the list for consideration for future vacancies in the officiant role

3.                   The employer arranges a mediation session for the worker and Ms X to dispose of any outstanding conflicts between the two employees.