INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1); INDUSTRIAL RELATIONS ACT; 1969
- AND -
MANUFACTURING, SCIENCE, FINANCE
Chairman: Ms Jenkinson
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Alleged failure to carry out a proper investigation of complaints of harassment and bullying.
2. The worker concerned is employed as an Instrumentation Technician in North Wall. In October 1995 he made accusations of harassment and bullying against three members of the North Wall management team and an Industrial Relations Officer. On the 6th of October 1997 he submitted the complaint in writing which referred to specific issues that occurred since 1992. As there was no formal Company policy on Bullying and Harassment at that time, the parties agreed to use a 'pilot policy' which was based on the ESB's Great Island Power Station Harassment and Bullying Policy. An investigation was carried out and a final report was issued on the 28th of July 1998. The report stated in its conclusion that "The overall finding of this investigation is that no evidence was found to support the claims of Bullying and Harassment made against any of the named individuals and that no such bullying or harassment occurred".
On the 22nd of December 1998 the claimant wrote to the Chief Executive informing him that the investigation had not been properly carried out, that none of his witnesses had been interviewed although they had given written statements, that none of his verbal allegations were addressed and requested his intervention. On the 9th of February 1999 the Head, Group Human Resources replied to the claimant that he was satisfied that the process had been a fair and equitable one and that the issues raised had been properly addressed. However, he advised the claimant that the internal procedures of the Company had not been fully exhausted and that he had the right to progress matters
through the industrial relations (IR) procedures. Correspondence and local meetings between the Union and Management took place. However, agreement could not be
reached and in May 2000 the issue was referred to the Labour Relations Commission. A conciliation conference was held on the 30th of August 2000. At conciliation the Union agreed to supply a list of the witnesses which had not been interviewed and the conference was adjourned until the 6th of October 2000. The Company did not attend the reconvened conference as it stated that it had only received the list of names on the 4th of October and needed time to prepare a response.
In November 2000 the Union received a letter from the Labour Relations Commission stating that the Company was not willing at that point in time to refer the issue to the Labour Court for investigation and recommendation under Section 26(1) of the Industrial Relations Act, 1990. The Union believed that the only course of action open to it was to refer the issue to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969. The Union agreed to be bound by the Court's recommendation. The Court investigated the dispute on the 2nd of February 2001.
3. 1. The Union wrote to the Company seeking that an appropriate appeals facility be put in place to enable the worker concerned to challenge the final report.
2. The Chairman of the ESB's Joint Industrial Council was prepared to deal with the appeal under non-binding arbitration although the constitution provides for binding arbitration. The Company refused to facilitate this arrangement.
3. At conciliation the Company stated that it was the first time that it had heard the allegation that witnesses were not interviewed. This is contradicted by the claimant's letter to the Chief Executive dated 12th of December 1998. The Company refused to participate in the conciliation process and the Union had no option but to refer the matter to the Labour Court under Section 20(1).
4. 1. The Union has failed to exhaust the agreed in-house IR procedures which allow for referral to 'local' and 'central' levels, and, if unresolved, to the LRC and to the Industrial Council for binding recommendation, in accordance with Clause 8 (a) of the "Agreement on the Constitution and Operation of the ESB Industrial Council (revised)".
2. The in-house IR procedures were agreed with the ESB Group of Unions. It is unacceptable that a signatory Union should attempt to ignore these procedures when it chooses. The Union was unprepared to accept a binding decision of the ESB Industrial Council, which is binding on both parties, but is prepared to accept the Labour Court's binding recommendation under Section 20, which is only binding on the Union.
3. The Company does not condone harassment or victimisation of any form. It is ESB policy to make every effort to provide a supportive workplace free from harassment of any kind. Accusations are taken very seriously and are dealt with in accordance with the "Code of Practice" drawn up and agreed with the ESB Group of Unions, including MSF. The Code provides that "..there will be a right to appeal a decision using ESB's agreed Industrial Relations Procedure".
At the hearing the Court dealt with a preliminary issue on this case and did not investigate the substantive issue i.e.the claim regarding the alleged failure of the Company to carry out a proper investigation into complaints of bullying and harassment.
The Court heard submissions and investigated the position regarding the procedural steps of this case so far. The employer side indicated that in its view the dispute has not been properly through the agreed and established internal industrial relations procedures of the organisation. The Union stated that there were no appropriate appeal mechanisms for addressing bullying and harassment disputes and that it was not willing to accept a binding recommendation of the ESB Industrial Council. The Union also complained of procrastination in handling this complaint.
The Court is of the view that there is a need to invoke the established industrial relations procedures immediately. Therefore, the Court recommends that a central meeting should commence within the next four weeks to investigate complaints of a flawed investigative process into the allegations of bullying and harassment. For the reasons apparent to the Court the items of discontent must be clearly identified and notified to Management, in sufficient time for a response to be prepared.
The Court recommends that the process should be dealt with without undue delay. The Court is to be kept informed of progress and of the final outcome of the process.
Signed on behalf of the Labour Court
15th February 2001______________________
Enquiries concerning this Recommendation should be addressed to Dympna Greene, Court Secretary.