Worker

Employer

Anonymised Parties

A Police Officer

A Police Force

Representatives

Brendan Ogle

Employee Relations Manager

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 - 00002687

23/05/2024

The Worker stated firstly that an unfair finding of bullying was made against him contrary to fair procedures and that the Employer refused to allow him to utilise the grievance procedure when he sought to challenge this. He also stated that a subsequent and related disciplinary sanction imposed upon him was unfair.

Further to an investigation carried out by a Superintendent to investigate a complaint of bullying lodged by a Detective Sergeant against the Worker and another policeman, the Worker was cleared of bullying.

The findings of this investigation were appealed by a solicitor on behalf of the Detective Sergeant even though there was no provision for representation from a solicitor under the Employer’s   bullying and harassment policy. The Worker stated that this should not have been allowed as it was not provided for in the procedure and it put him at a serious disadvantage. He also asserted that mediation should have been used to attempt to resolve the matter.

Although the Assistant Commissioner upheld the Detective Sergeant’s appeal and found that the Worker had engaged in bullying behaviour, and that he should engage in training as a result, it was noted that the Employer’s bullying and harassment policy states that “an appeals process for both parties should be in place.” However, this process was not made available to the Worker, who was informed that the Assistant Commissioner’s decision was final.

It was also asserted by the Worker that the appeal of the Superintendent’s findings centred on an assessment of his findings rather than a review of the procedures as provided for the policy. The solicitor who conducted the appeal did not make any procedural finding and did not provide a copy of his report to the Worker despite a data protection request having been made by him. He did not receive a copy of it until he received the Employer’s WRC submission.

Although the Worker sought to appeal the recommendation of the Assistant Commissioner via the grievance procedure, this was refused by the Employer and the Worker was completely in the dark about the reasons why he went from being cleared of any wrongdoing to being called a bully and suffering a penalty.

The Worker also stated that he was denied the opportunity to be represented during the subsequent disciplinary process that was initiated because of his failure to engage in “training in people with respect and dignity.” which had been recommended by the Assistant Commissioner.

On 30 August 2022, a Superintendent was appointed to investigate a complaint of bullying lodged by a Detective Sergeant against the Worker and another policeman. The worker was interviewed by the Superintendent on 18 October 2022.

On 25 February 2023, the Superintendent found, on the balance of probabilities, that the complaint should not be upheld.

On the following day, the Detective Sergeant sought a review by the local Assistant Commissioner, as provided for in the Employer’s bullying and harassment policy. A solicitor was appointed as ‘independent expert’ by the Assistant Commissioner. On 15 May 2023, the solicitor concluded his audit.

He found that it was not reasonable to find, as the Superintendent did, that:

·       the alleged behaviour should be accepted as ‘symptomatic of a general culture within the District Detective Unit’,

·       that the ‘evident ethos of the unit is very much work oriented’ and

·       that the ‘absence of personable interactions’ between the complainant and the members complained of ‘is a direct consequence of this working environment’;

On 22 May 2023, the Assistant Commissioner issued her decision, taking into account the views of the solicitor who conducted the review, deciding that, on the balance of probabilities, the complaint of bullying made against the worker was valid and met the threshold of bullying.

The Assistant Commissioner also decided that advice and training would be of benefit. Implicitly, this was also a finding that the complaint did not amount to a crime or a disciplinary offence.

On 24 May 2023, the Assistant Commissioner asked the worker to provide contact details so that the nominated trainer, could contact him to organise the training. On 2 June 2023, the Worker replied that he required ‘time to consider [his] position’, to which the Assistant Commissioner responded on 8 June, citing the Employer’s Bullying and Harassment Policy, that the worker was obliged to comply with the procedures. On 13 August 2023, the Worker’s supervisor, advised the divisional Chief Superintendent that the Worker was ‘not prepared to make himself available for training’ prior to engagement with the internal grievance procedure.

A reply issued from the Assistant Commissioner on 16 August 2023, which made it clear that members of the police force were required to follow organisational policies and asked again that the worker engage with the provision of training. By e-mail of 28 August 2023, the Worker enquired as to whether the 16 August correspondence stood in light of his attempt to use the grievance procedure. The Assistant Commissioner replied on 6 September noting that the grievance procedure was inapplicable in relation to the Bullying and Harassment policy, stating explicitly that provision of training was not disciplinary action.

On 6 December 2023, disciplinary proceedings were initiated and a Chief Superintendent was appointed Deciding Officer. Further information was provided to the Chief Superintendent by the Assistant Commissioner on 4 January 2024.

The sole disciplinary breach alleged was ‘neglect of duty’ in that the Worker ‘failed to engage in training to treat people with dignity and respect at work despite being directed to do so’.

An interview was conducted on 14 March 2024, at which the allegation was read out and the Worker, in response, read from a written report in which he stated, inter alia, that he could ‘confirm that I did not attend the meeting’ which the Assistant Commissioner directed him to.

The Worker was issued a warning under the Regulations applicable to the Employer. The notice provided to the Worker set out that he could apply for a review of the decision within seven days. He did not do so.

On 10 May 2024, the worker informed the Assistant Commissioner’s office that he rejected ‘the original decision’ and intended to refer the matter to the Workplace Relations Commission.

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

The Worker’s dispute centred firstly around a recommendation from the Assistant Commissioner on 22 May 2023 that he undergo training as a result of a finding of bullying against him and secondly about the subsequent refusal of the Employer to allow him to utilise the grievance procedure in relation to the recommendation.

Even if I was of the view that he should have been given the opportunity to utilise the grievance procedure—similar to the option afforded to the Detective Sergeant to seek a review of the Superintendent’s initial findings—the Worker chose not to refer a dispute to the WRC in relation to Employer’s refusal to allow this during the more than six- month period after the recommendation from the Assistant Commissioner and prior to the initiation of disciplinary proceedings. Instead, he inexplicably waited until after receiving a disciplinary sanction to refer the dispute to the WRC and did so before fully utilising the internal appeal process that was available to him following the issuance of the disciplinary sanction.

Given my view that the disputes are inextricably linked—since the sanction issued at the end of the disciplinary process stemmed from the Worker’s failure to comply with the Assistant Commissioner's recommendation, which he attempted to challenge through the grievance process but was refused—I find that both matters should have been addressed during an appeal of the disciplinary outcome instead of being referred to the WRC. This is because it is well established that the WRC has no role in investigating industrial relations disputes, in respect of which the procedures have not been exhausted at local level.

Considering all of the foregoing, I cannot make any recommendation in relation to these disputes.