ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00024545
Parties:
Representatives | Self | Martyn West Moorepay |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031187-001 | 29/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00031187-002 | 29/09/2019 |
Date of Adjudication Hearing: 16/12/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the IndustrialRelations Acts 1969following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.
Background:
The Employee/Complainant was employed by the Employer from 27th September 2017 until his dismissal on 28th November 2019. He was employed as a sales assistant for 16 hours per week at €9.80 per hour. The Employee did not make any claim of unfair dismissal and claim is one of being bullied, harassed, and victimised at work by all levels of management and that he had made several complaints both verbal and written against junior and senior management and none of these were acted upon. This allegation of bullying was submitted to the Workplace Relations Commission in September 2019 and prior to the separate process which resulted in his dismissal. The allegation of bullying falls for consideration under the Industrial Relations Act. There is a separate complaint of failure to provide a statement of terms and conditions of employment.
By way of procedure, the matters in dispute were the subject of a face-to-face hearing in March 2020. There were matters of procedure explored at that hearing related to the fact that subsequent to submitting his complaint the Employee was dismissed. He opted to proceed with his complaint under the Industrial Relations Act and there followed a detailed hearing where the facts around the provision of a statement of terms of employment and related policies were contested. The initial hearing was adjourned, and the Employee was requested to provide clarification as to his claim under the Industrial Relations Act by way of a written submission. Covid-19 intervened, and a rescheduled face-to-face hearing was postponed. Initially the employer objected to the matter being heard remotely but later consented and a remote hearing was scheduled for 6th November 2020. Regrettably, there was a misunderstanding on the part of the undersigned as to what documentation had been provided to the Employee from a considerable volume of material submitted by the Employer. As a result, aside from clarification on one point related to the complaint under the terms of employment act, it was not possible to proceed with the hearing of the industrial relations dispute. The dispute concerning the allegations of bullying was heard in full by way of a remote hearing on 16th December 2020. |
Summary of Complainant/Employees Case:
Terms of Employment (Information) Act 1994 as amended
The position of the Complainant is that he did not receive a statement of terms of employment from the Respondent until September 2019. This followed requests in writing commencing on 29th July 2019.
Industrial Relations Act 1969
The Employee submitted a complaint about junior management to area management in the employment on 20th August 2019. His allegation of being bullied, harassed, and victimised at work includes an allegation that he made several complaints both verbal and written against junior and senior management previously but that none of them were acted upon. Specific dates of allegations of bullying were given for 2018 and 2019 together with allegations of unfair treatment regarding promotion and victimisation through shift rostering including a lower number of hours allocated to him. He was told to leave the store by the area manager two days after he had submitted his written complaint. While he was invited to grievance hearings, he was not allowed what he described as “a viable person” to represent him at the hearing convened to hear his complaint on grounds that such a person, in this case a family member, was outside procedure. He was advised that he could have a support person from among the staff, or a trade union. However, when he contacted two separate trade unions none were in a position to provide representation to him. He felt too intimidated to attend the hearing by himself and the Employer then considered the procedures exhausted and instructed him to return to work in another store. He informed management that he would be referring the matter to the Workplace Relations Commission. Thereafter, he was notified of a separate unrelated matter and an investigation meeting to explore the findings and conclusions of an investigation “ongoing since the beginning of June.” It was that process that led to his dismissal. He did not participate at that process, which is not a matter under consideration in this case, as confirmed at the hearings in March and again in December 2020. |
Summary of Respondent/Employer Case:
Terms of Employment (Information) Act 1994 as amended
The Respondent contended that the Complainant had signed a declaration form in September 2017 as part of his training that he had “read and understood the ... employee handbook manual.” They also provided a copy of the employee handbook photographed in a folder and said to be held at the shop where the Employee was employed. During the initial hearing following some discussion of the matter the employer acknowledged that the statement of terms of employment circulating within the company and which they initially cited at the hearing was in fact a document appropriate to UK including Scottish legislation. During the first hearing, it was conceded that compensation was appropriate and a matter for the Adjudication Officer to decide.
Industrial Relations Act 1969
The Employer’s position is that every effort was made to hear the grievance submitted by the Employee. He was offered meetings; a person outside the area was appointed to investigate the grievances; when the Employee explained that he had no union representation he was given time to obtain the services of a trade union. It was clear to the company that the Employee wished to be represented by his father at the grievance hearings, but this was outside of the process and it is not considered appropriate that an adult over the age of 18 would be represented in a workplace matter by a parent or family member. The Employer had no difficulty with the referral of the matters to the Workplace Relations Commission and had confirmed this to the Employee. The process of dealing with unrelated matters associated with investigations by the DSP were put in train having been held back since June 2019. The Employee refused to cooperate with the investigation of those matters and was subsequently dismissed. The Employer rejects the substance of the allegations made by the Employee. He was put on leave following his complaint because of his conduct in the store and he had every opportunity to present his grievances and failed to do so.
While accepting that there were flaws in the matter of the provision of a statement of terms of employment, the summary of the Employer’s position under the Industrial Relations Act is that they have no case to answer in respect of the handling of the grievances submitted by the Employee and that his complaints of bullying, harassment and victimisation are unfounded. |
Findings and Conclusions:
Terms of Employment (Information) Act 1994 as amended
Findings
Section 3 of the Terms of Employment (Information) Act states:
“3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—".
While it is not clear what terms were set out in the photographed binder of a staff handbook said to have been at the store in question and said to have been signed and read by the Employee in his induction training, it is self-evident that the Respondent breached Section 3(1) of the Terms of Employment (Information) Act in the case of the Complainant by failing to provide him with a written statement and one which complied with the legislation in Ireland. That the Respondent has only rectified the situation and prepared the correct statement of terms of employment to apply under the legislation in the Republic of Ireland following the request from the Complainant suggests that as an employer they were not complying with the legislation prior to 2019. Evidence to this effect is contained within the Respondent’s own considerable supply of correspondence where as late as 30th August 2019 it is stated: “The contractual piece will have no bearing now as he will have been issued with a UK contract.” The absence of a statement of terms of employment and an appropriate staff handbook impinges on the separate matter of the dispute under the Industrial Relations Act when the Respondent seeks to rely on its grievance procedures and an alleged failure of the Complainant to comply with those procedures in pursuing his allegations of bullying. In the circumstances there is justification for awarding the maximum compensation allowed under the Terms of Employment (Information) Act 1994 at section 7.
Industrial Relations Act 1969
Conclusions
The management of workplace employee disputes can be very complex even for experienced practitioners. For unrepresented employees, inexperienced in such matters, the process of weaving through procedures and processes particularly in an employment with no hands-on HR department must seem at times like trying to navigate a maze. Neither side in this dispute had much experience in this type of situation, as evidenced by the communications between them and the repeated confusion and frustration leading to queries and misunderstandings. A simple example would be the understanding of the Employee that he was sent home from the workplace following the submission of his complaint in his own interests and out of a concern for his wellbeing only to discover when he queried the decision that in fact it was a response to alleged misbehaviour on his part. The difference between the parties in terms of experience is that ultimately the Employer was able to fall back on professional HR advice in the UK while the Employee did not have any similar support. His refusal to attend meetings on his own or with a colleague was naïve, as was his belief that the WRC would investigate the substance of his allegations of bullying. Regarding the reference to the Workplace Relations Commission, this is not the first time where an employee has sought an investigation of allegations of bullying by the Workplace Relations Commission. There is no statute-based provision which provides for decision making on allegations of bullying by the WRC or the Labour Court. The Industrial Relations Act provides for the opportunity to resolve disputes between employees and employers whereas the detailed assessment of an allegation of bullying is one which would require evidence and the right of reply including the testimony of witnesses which falls outside the scope of what was the purpose of the industrial relations legislation. What has happened under the industrial relations legislation in the past is that recommendations were made in some circumstances to appoint an investigator external to the employment to inquire into and decide on the allegations. Representation within such an investigation would still be a matter for the employer to determine and would not imply that the right to be represented by a family member would be a given in those circumstances. However, whether such a recommendation would have been made and accepted by the parties is now in effect moot because the opportunity to resolve the dispute on this basis has effectively passed since the Employee is no longer in the employment since November 2019.
Based on the foregoing conclusions it could appear that the Employee’s case against his former employer has no reasonable basis either in substance, i.e., that the allegation of bullying should be investigated by the WRC, or by way of his criticism of the reliance by the employer on their own and normal procedures regarding representation and the related refusal of the employee to participate in the internal grievance procedure. There are however, two significant concerns in terms of the Employer’s position which merit further consideration. The first is that there was no attempt made to speak to this young man and to explain to him what was happening or the position of the employer or to try and establish some level of communication outside of a trail of emails. He had no idea that there were issues concerning his conduct in the background or that his continued correspondence was causing quite a bit of frustration on the management side. In an employment it is not unreasonable to conclude that the employer who has HR resources, albeit in the background through an external provider, should intervene and attempt to develop some understanding of the thinking of the employee and to try and diffuse a situation rather than what was happening here, which was the Employee becoming increasingly isolated in relation to his own issues and the employer then proceeding to process their issues against him without ever speaking to hm at all.
In the context of the allegation of bullying and the procedures that were in place in the employment, of serious concern is that when the staff handbook is examined there was no antibullying policy or procedure in that manual. Leaving aside the Employee’s contention that there was no folder containing the manual in the workplace as claimed by the Employer, the fact is that the employer in this instance did not have in place such a policy and a related procedure which the Employee could, and the employer should, have followed in respect of bullying. This observation harks back to the point covered by the complaint under the Terms of Employment (Information) Act which is that this employer was relying on UK legislation to determine the conditions of employment for its employees. What the employer offered the employee in this case was a grievance hearing and not a bullying investigation which in the normal course of events would set out the procedures which will be followed in what is or should be a serious investigation. The staff handbook or manual does contain a non-harassment policy at section 5. This is clearly designed to address issues of discrimination albeit neither does it appear to be wholly in line with the relevant Irish legislation and statutory instruments in place for many years. The absence of a procedure is important because when invited to the grievance hearing and again at the first hearing date with the WRC, the employee thought that everyone he complained about would be present in the room. Thus, the conclusions about his lack of experience, the inadequacy of communications and the absence of an appropriate procedure are intertwined and all relevant and it is reasonable to conclude they were connected to his concerns about attending meetings without any real support.
The absence of an antibullying policy and the failure to conduct investigations of allegations of bullying, are serious matters which have been considered by adjudication officers and their predecessors under industrial relations legislation, most often in the period before the relevant statutory instruments were issued in 2002 and 2007-quite some time ago. The absence of such a policy being available at all to the Employee, based on statutory instruments and good practice which is widely followed, was wrong. The process which was put in place by the employer was inadequate to meet the allegations and to accord them the seriousness which they deserved, both from the point of view of the Employee and others who were accused of bullying him.
At this point in time the most appropriate resolution appears to be to recommend compensation to the employee for the failure of his former employer to have in place any bullying policy and a related procedure and, therefore, their inadequate response to the serious allegations which he submitted in 2019. It is hoped that this recommendation will encourage the former employer to put in place a fully compliant and detailed antibullying policy and to provide adequate training to staff in its employment in Ireland on these matters including managers.
This recommendation does not in any way mean, not should it be interpreted as meaning that the complaints of bullying were valid complaints-they were never investigated and as such are merely opinions. Nor does it mean, nor should it be interpreted to mean, that the refusal to allow the employee to be represented by his father was a legitimate reason for refusing to participate in any investigation. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Terms of Employment Information Act 1994 In accordance with Section 41 of the Workplace Relations Act,2015 and Section 7 of the Terms of Employment Information Act, I decide that the complaint by the complainant is well founded. The Respondent is to pay the Complainant the maximum compensation of four weeks pay which is €627.20. Industrial Relations Act,1969 I recommend that the employee in this case receive the sum of €5000 for the failure of his employer to have in place an anti-bullying policy, for the failure to provide him with such a policy, for the failure to provide him with an investigation of or the terms of reference for an investigation of his allegations of bullying, including the procedure to be followed. |
Dated: January 14th 2021
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Statement of Terms of Employment and Bullying Allegations/Procedures |