ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00003715

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             09/07/2025

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker seeks an independent third party investigation into an incident where she alleges she was physically assaulted in the workplace.

Summary of Workers Case:

The Worker was assaulted at work on 8 February 2024 by a male colleague.  A complaint was raised and investigated internally but was not upheld.

It is submitted that this was the incorrect outcome given the fact that the employer has zero tolerance of the behaviours demonstrated by this male colleague.

The worker has been in the employment since 1995 and has an exemplary record and never has been in a situation like this in 30 years’ service.

While the worker is aware it is not in the remit of the Adjudication Officer to examine or re-examine the matter, for contextual purposes the account of the Worker was outlined in detail.  Also despite confidentiality being emphasised during the investigation, confidentiality was breached.  The one witness to the incident did not concur with the respondent or the complainant’s account.

An account of the meetings held with the complainant and her shop steward was given in detail.      Meetings were held in February and March, during which the complainant outlined her concerns re breach of confidentiality.  On 28 March 2024 a report was issued that did not uphold the complaint in any way, due to “insufficient evidence”.

It is submitted that an incorrect conclusion was reached and that it is contradictory to state as it did in the report that ‘some sort of banter or horseplay did occur’.

The employer had options in that they could have concluded that the complaint was upheld on the balance of probabilities, given the admitted reaction to the assault and the apology offered by the respondent.  It was also open to them to conclude there was an affront to her dignity at work.  The worker requested throughout the process that the respondent be moved from his workstation.

An appeal was offered and the outcome was that the complaint was not upheld.  Mediation was recommended but not taken up by the worker as she considered it a fruitless exercise and especially given further talk in the workplace regarding her situation.

Subsequent to the outcome of the investigation and appeal, it became increasing difficult for the worker to work alongside the respondent to her complaint and she finds her work life increasingly difficult.  Her desired outcome was that her colleague would be moved to a different shift. This would have happened had there been a different outcome.  It is acknowledged that the employer followed procedures by having the matters investigated but failed when the outcome did not uphold any part of the complaint particularly when the respondent party admitted many aspects of the incident.  SIPTU made requests for an independent investigation but this was rejected.

Mediation was not an option where the trust is completely broken down and the worker feared a backlash.

Acknowledging that the Adjudicator cannot re-investigate the case, it is requested that a third party is assigned to investigate the matter by mutual agreement.

Summary of Employer’s Case:

The claimant alleges that she was physically assaulted at work by a colleague. The matter was investigated and the complaint was not upheld. She is seeking an independent investigation agreeable by both parties, into this matter.

The claim is rejected in its entirety. The Respondent has undertaken a thorough and detailed investigation into the serious allegations that were made and the outcome of the Investigation was there was insufficient evidence to support the allegation of “unprovoked assault in work”. The Claimant appealed the findings of the investigation and the outcome of the appeal was that the findings of the investigation was upheld and there was a recommendation internal mediation between the Claimant and her colleague. Mediation was subsequently arranged with an Independent Mediator and on the day before the mediation was due to take place, the Claimant withdrew from the process stating that the only solution was for the work colleague to be moved to a different area.

On the 13th February 2024, the Claimant raised a formal complainant against her colleague and submitted a statement to stating that during the night shift on the 08th February at around 4.15am that she had received a slap in the face from him on the factory floor. She had been talking to another colleague at the time.

A full investigation was undertaken during February and March 2024 and the Claimant and her colleague were interviewed separately as was the other colleague present on the night.  All were accompanied by their shop stewards.  The colleague who was present on the night stated that she had not seen the colleague slap the Claimants face.  The statements gathered were shown to the Claimant and she was happy with them.  She stated she wished for the colleague to be moved as she could not trust him and could not look at him anymore.

The 28th March 2024, the investigation team concluded their investigation and found that there was insufficient evidence to support the allegation of “unprovoked assault in work” made by the Claimant.

On 28 March 2024, The Claimant appealed the outcome of the investigation report.

On the 10th April 2024, an appeal hearing was conducted.

When asked what she was appealing she stated that the decision of the investigation was wrong. That a person could admit they hit another person and they were not disciplined. She further stated that what she sought from the appeal process was that she wished her colleague be moved to another shift.

On the 26th April 2024, the Appeal panel received an email from the Claimant’s shop steward stating that the Claimant would like to take up the offer of a mediated meeting in an effort to make this better, more comfortable and regain proper communications by both parties involved on the shift.

An outcome meeting took place on the 28th April 2024. The claimant was advised of the decision of the appeal panel was that they could not find any evidence to support the allegation of the Claimant and therefore the appeal was not upheld. They did recommend that a face to face mediation, which was an independent process, and was voluntary to the parties.

On the 06th June 2024, the HR Director (Ms H) emailed the Claimant thanking her for agreeing to participate in a mediation session following the outcome of her grievance investigation and confirming that the mediation session was confirmed for Thursday, 13th June at 2pm with Mr M, Independent Mediator. She outlined the purpose of the mediation and the role of the Mediator.

On the 12th June 2024, the Claimant emailed Ms H to stated that she was unaware of the mediation process and had not been informed of the process or the principles of mediation, therefore she was declining the offer. She stated that she had requested that her colleague be moved from the area she worked in and that was the only solution that she could see.

On the 13th June 2024, the Claimant through her Union represented requested a copy of the Grievance Investigation file to be forwarded as it was required by the SIPTU Workers Rights Centre.

In late 2024, the Respondent received correspondence directly from SIPTU requesting that the investigation be reopened and be undertaken by an independent third party. The Respondent confirmed in line with their own procedures the matter has been fully investigated and they viewed the matter has fully exhausted.

On the 29th January 2025, the Claimant lodged her complaint to the WRC.

RESPONDENT ARGUMENTS

In relation to the procedures used to investigate this complaint, the Respondent adhered to its Grievance Procedure agreed from the outset of the process. The Claimant was afforded all benefits of fair procedure, in line with the Respondent’s policy and the universal principles of natural justice. Considering all of the above, it is the position of the Respondent that the whole process, from the investigation to the appeal was procedurally fair in all aspects.

Once the Respondent was made aware of this complaint; they acted reasonably to address this in a fair and impartial manner including the involvement of an external mediator following the appeal process which was initially agreed with the Claimant.

In the investigation report, the Investigation team outlined how they had come to their findings based on the facts that were gathered through the meetings with the parties involved and the only witness statement, based on the evidence that was provided.

The appeal process was conducted by personnel who were completely independent of the investigation process.

It is the position of the Respondent that it is the role of the Adjudicating Officer in this instant case to determine whether the process of investigation was procedurally correct as opposed to a re-investigation of the original complaint. The Respondent seeks to rely on the case of A Support Worker v Development Organisation ADJ-00034132, where in a similar case the Adjudicating officer found

“Having considered the evidence, documents and submissions in this case, I note that the Complainant does not accept certain elements and findings. However, I find that the investigation and appeal process carried out with the widely accepted procedures for investigating complaints and I therefore do not recommend that a fresh investigation into the Complainant’s complaints.”

The Respondent refers the Adjudicating Officer to the case of Tesco v Shaun O’Brien (LCR21879) where the Labour Court stated that it was not in a position to carry out its own investigations into allegations of bullying and harassment. It further stated that the Court will always be mindful, in reaching its conclusions, of the rights of all parties to the natural justice protection of ‘audi alteram partem’ – the right to be heard before a judgement can be made. The Court could not say whether or not the behaviour of the manager goes beyond ‘inappropriate’. All the Court could do is note that two separate investigations had taken place and that both reached the same conclusion that the manager’s ‘inappropriate’ behaviour fell short of bullying and harassment. The Court did not propose to substitute its opinions for that reached by the people who conducted the investigations.

The Claimant declined the opportunity to attend Mediation with the Independent Mediator on the day before the mediation was due to take place on the 12th June, having received the confirmation on the 06th June 2024. The Claimant did not lodge her claim to the WRC until the 29th January 2025, some eight months later and nearly twelve months since the alleged incident took place. This lapse in time is not acceptable as the Claimant is seeking a reinvestigation into an incident that took place some 16 months previously and one that has already been conducted and concluded by the Respondent in accordance with agreed and long established principles of natural justice.

Conclusions:

Both parties agree that the Employer followed procedures by having the complaint investigated and providing the right to appeal.  The complaint was fully investigated and the one witness who was present on the night did not corroborate the worker’s account of being slapped in the face.  The worker disputes the outcome of the investigation and appeal and does not agree to mediation, which is her prerogative.  Both parties agree that it is not in my remit to investigate or re-investigate the complaint.  The worker seeks a third party investigation and for the colleague to be moved to a different work station.  The worker’s expectations of a different outcome by a third party may not be realistic.  It is a truism that due process must be followed for all parties in this situation.               

In Euro Car Parts Ireland Ltd v A Worker LCR22092 the Labour Court found:

In relation to the process followed and the report issued, the worker could not point to any failure by the employer to follow the company procedures, rather his issue appears to be that he disagrees with the findings of the Investigator.  The Court finds that the worker’s complaint was investigated in a fair manner and on that basis the appeal must fail.

In this instant case, I find that two separate investigations came to the same conclusions, and it is unlikely that a third would come to a different conclusion.  I find that the worker’s claim for a third party investigation is not upheld.  It follows that as due process has been followed, the claim also for the worker’s colleague to be moved cannot be upheld. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

For the reasons and conclusions above, I do not find in favour of the worker.

Dated:   22-08-2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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