Worker

Employer

Anonymised Parties

A Worker

An Employer

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 - 00002920

27/07/2024

The worker referred a dispute concerning ‘Bullying and harassment procedures’ to the WRC. She is paid €600 per week. In June 2023, the worker and a colleague requested a meeting with the Director. At this meeting they informed the Director of how they were treated by their manager. They outlined examples such as criticism in front of colleagues and service users. The Director suggested that an informal meeting would take place. This meeting did not take place. The manager then went out on sick leave. When the manager returned, a mediation process took place with an external mediator. This process did not resolve the complaints. There were changes in senior management after the events in question.

The current management team were not involved at the time of the complaints. They provided relevant documentation which consisted of the Director’s notes of meetings with the worker.

After reviewing the documentation, I copied the ‘Code of Practice for Employers and Employees on the Prevention and Resolution of the Bullying at Work’ and requested further submissions. Both parties made supplementary submissions.

The worker’s dispute is that she was not updated or supported after raising complaints about her manager. As the complaints were not progressed due to the manager’s sick leave, she said she was insufficiently updated by the Director. As the complaints did not progress, she became stressed and attended counselling. She still attends counselling once a month.

The worker said that her colleague withdrew her complaints against the manager.

After reviewing the documentation, I requested confirmation from the worker on whether her complaints were ongoing due to the new management team now in place. She confirmed that she did not want the matters to be investigated due to the staff changes. 

The new management team were not involved when the complaints were made. They submitted documentation which consisted of the former Director’s notes of meetings with the worker. After the hearing, when the worker confirmed she did not want her complaints investigated, due to the staff changes, the employer submitted that the dispute was effectively resolved and should be withdrawn by the worker.   

As there are no specific statutory provisions on bullying, the guidance is provided in the ‘Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work’ (the Code). The Company Anti-Bullying and Harassment Policy (Policy) document in place at the time is also relevant.

Based on the definition of bullying and nature of complaints, I am satisfied that they fall under the Employer’s Policy and the Code. Therefore, the Code and Employer’s Policy are the relevant procedures to deal with the complaints made. These procedures are important, as the adjudication role for this type of dispute is to investigate whether they were adhered to. The worker has confirmed that there is now no need for an investigation. I consider this to be a practical approach, particularly given the passing of time. I do not view this as a requisite that her complaints to the WRC are invalid and need to be withdrawn. The handling of the complaints as per the Employer Policy and the Code still need to be assessed from June 2023 to date.

The Code also describes the role of the Adjudication Services on page 25-

‘The provision of Adjudication services under Section 13 of the Industrial Relations Act 1969 following the exhaustion of internal procedures (note: the grounds of referral to an Adjudication Officer are around the conduct of an investigation in terms of fairness and adherence to fair process and procedures).’

Handling of Complaints

The adjudication investigation was based on the documentation available. The worker also provided a detailed document. Both accounts are consistent and provide relevant information on how the complaints were handled-

·        On 27th June 2023, the Director’s notes outline the issues discussed at the meeting with the worker and her colleague. The note concludes that a meeting will be held between the relevant parties. It is unclear whether this note was made available to the worker or the manager at the time or subsequently.

·        On 1st August 2023, the Director’s notes of this meeting describe the complaints and conclude that a meeting will be held when the manager returns to work. It is unclear whether these notes were made available to the worker or the manager. The worker’s account states that on 11th August 2023 she was asked to sign a statement of the meeting held on 31st July 2023, which is most likely this meeting of 1st August 2023. The worker states in her submission that she never got a copy of these notes.

·        In September/October 2023, the worker sought support from the Director as the ongoing complaints were not progressing due to the manger being on long term sick leave. Counselling was offered by the Director and there was also a reference to an outside person becoming involved.

·        In March 2024, the external mediator met with the worker and the manager. The mediation process did not resolve the complaints.

·        In April 2024, there were changes in senior management. There was no follow-on process to deal with the complaints.

·        In June 2024, there was a new management team, and nothing occurred subsequently as the worker referred a complaint to the WRC in July 2024.

Handling of Complaints in Accordance with Policy and Code

The Employer’s Anti-Bullying Policy provides for a worker to make a complaint to the Director. It also states that every effort will be made to resolve a complaint speedily. In June 2023, the Director’s notes state that she would deal with the complaints directly with the parties in a forthcoming meeting. The Policy and the Code also endorses this approach as a means of resolving matters informally.

However, no meeting took place. The manager was then on long term sick leave. It is unclear from the documents how mediation was proposed in or around September/October 2023. In March 2024, the mediation was conducted by an external mediator. Although the Code encourages the use of mediation, the Employer Policy did not refer to mediation as an option.

When informed of the complaints, the Director’s notes state that she will hold meetings. This is in line with the Employer Policy which is strongly worded on how these complaints are handled. The process then changed to external mediation. Although this occurred from June 2023 to March 2024, there is no communication to the worker explaining why mediation was now the preferred approach.

It is concerning that in October 2023, there is a line in the Director’s notes stating. ‘I gave …… a copy of our Employment Handbook again and encouraged her to read through it.’   

Although the worker was aware her manager’s sick leave may have delayed the process, the Employment Handbook did not provide further clarity as mediation was not mentioned in the Anti-Bullying Policy section. As the worker did not receive a copy of the Director’s notes and the process for resolution was unclear, it is understandable that she became stressed and felt unsupported.

A consultation with the Code would have assisted at that stage. The onus was on the Director to explain why she was not proceeding with her earlier commitment to meet with the parties and explain why mediation was then the alternative process. Both approaches are encouraged in the Code to assist in resolving matters informally. As the Employer Policy did not contain the required detail, the onus was on the Director to refer to the Code, which would have provided some guidance.

The Director may have set out in good faith to resolve the matter informally by meeting all parties. However, when this did not happen, there was no communication on why this approach changed. From a review of the notes, the Director was on notice of the worker’s predicament where she had made complaints about her direct line manager. It was clear that the complaints were quite serious and required much more attention and urgency.

Bullying complaints can be difficult to manage in small employments, particularly as a senior manager needs to remain neutral. The Code warns senior managers of the danger of getting involved too early when they may be needed for a later judgment or appeal.

If this altered the Director’s approach in not getting directly involved too early, there was an onus to explain this to the worker. There was also a responsibility to bring matters to a conclusion either through mediation or follow-on investigation. The delays and lack of clarity would not have provided confidence to the worker that her complaints would be dealt with.

From April 2024 to June 2024, when external mediation did not resolve the complaints, there was no guidance on the next steps. As the complaints arose in June 2023, a concerted effort was needed to conclude matters. The Code includes a secondary informal process (4.1.2), which provides for the complaints to be verbal or written. Although the Director asked the worker occasionally whether she wished to make a formal complaint, the Director was already on notice, as she had documented the complaints from the earlier meetings.

The Code provides guidance to both employees and employers. Even though the Employer Policy provided limited information, the worker could have documented her complaints and sought a formal investigation rather than relying on the Director to resolve informally. She did not do this. She put her trust in the Director who had noted the complaints. Although the Code guides all parties, the onus was on the employer to adhere to the Code, particularly as their own policy lacked detail. As the Code provides for an additional secondary informal process, the worker is not required to submit written complaints.

Conclusion

In summary, the Employer Policy contains insufficient information, and the Code was not adhered to. The actions taken by the Director were inadequate, with a deficit of communication and guidance as to the procedures that were being followed. As sections 4.1.1 and 4.1.2 of the Code were not adhered to, I decide that there is merit in the worker’s dispute.

I recommend that the employer pay the worker €3,500 in full and final settlement of the dispute. For clarity, this payment is compensation and is not related to earnings.

Bullying Complaint, Procedures