INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HENKEL LOCTITE (IRELAND) LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal of a Rights Commissioner's Recommendation No. R-039376-Ir-06/DI.
2. The case concerns an appeal by the Union of Rights Commissioner's Recommendation No. R-039376-IR-06/DI. The dispute concerns an employee of Henkel Locktite
(Ireland) Ltd, who made an allegation of bullying and harassment against her supervisor.
The worker claimed that the way she had been treated and the subsequent investigation into the alleged harassment resulted in her being certified unfit for work due to workplace stress. The Union is claiming that the internal investigation was handled incorrectly and, in fact, exacerbated the difficulties experienced by the worker. It is also claimed that the subsequent external investigation was flawed on the basis that neither the Union nor the worker were involved in the proceedings.
The dispute was referred to the Rights Commissioner for investigation. His findings and Recommendation issued on the 5th July, 2006, as follows:-
"If the original investigation had been carried out by an independent external investigator, I believe he/she would not have used the same line of questioning as used by management. I can find nothing in either the claimant's allegations or the Supervisors response to those allegations that could lead to such questions as"was this a lover's tiff?"or"have you had a relationship with anyone in that section?".I also find that extending that line of questioning to the claimant's colleagues would inevitably have had to result in promoting rumour regarding the claimant.
I agree with both the Union and TCD that the investigators were at fault in not interviewing the Supervisor's line manager. Not only did witnesses confirm their belief that the claimant had previously raised concerns with management regarding the Supervisor's behaviour, her written complaint to the HR Manager, a member of the investigating team, states that"it is very stressful to find that having brought this harassment to the intention of the Company, I now find myself having to make a formal complaint against [the Supervisor]".The failure of the investigating team to interview the Supervisor's Line Manager was a serious flaw in the investigation and, I believe, creates a serious doubt on the credibility of the finding of that investigation.
I do believe that, following the rejection and appeal of the internal investigations findings, an external body could carry out a fair and comprehensive investigation into allegations of bullying and harassment without interviewing the complainant and/or her representatives. I also have concerns regarding the statement by the external investigator that shows that she was not supplied with all of the witness statements taken during the original investigation.
I accept the Union's position that the respondent should have implemented the external investigators' recommendation that the Supervisor be given interpersonal skills training. By failing to do so and yet state to the claimant the internal investigator recommends"that both parties should accept the conclusions of the report.."the respondent added to the claimant's belief that she was being treated unfairly.
While I accept that there is a coincidence in the timing of the issuing of the TCD report and the claimant being certified with"exhaustion due to ongoing work
stress",I find that the respondent should have utilised its medical resources rather than simply make a decision to dismiss the diagnosis of the claimant's GP.
I also believe that when the claimant returned to work on 11th October after this absence, the respondent should have had some sensitivity towards what had transpired over the previous months. At the hearing the respondent did not refute that when the claimant returned to work she was told to report to HR where the HR Manager directed her to an empty office where she remained for the full day."
"Having considered the submissions made by the parties and the findings set out above, I find in favour of the claimant. I recommend that the claimant be paid
€3,000 in compensation for the manner in which her complaint was dealt with internally and by the subsequent external investigation".
On 3rd of August, 2006, the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th October, 2006.
3. 1. The Company failed in its duty of care to the employee on the basis of its internal investigation into the complaint. Inappropriate questioning led to rumour and discussions taking place in relation to the claimants character and the veracity of the claims made against the supervisor.
2. The Company failed to implement the Recommendations of the external investigation into the complaint which stated that the supervisor be trained in interpersonal skills.
3. The worker is entitled to a formal apology from the Company as it failed to protect the employee during the alleged difficulties.
4. When returning to work following the period of sick leave, it was suggested to the worker that she had not been ill and was instead seeking to abuse the sick pay scheme. Management had no right to question the medical certificate that the claimant was unfit for work.
4. 1. All issues were addressed in the Company's investigation into the allegations. Witnesses were interviewed and every effort was made to bring the matter to a satisfactory conclusion.
2. When the internal investigation was rejected, the matter was referred to the anti-bullying centre at Trinity College Dublin for an external investigation into the matter.
3. The line of questioning posed to the claimant was necessary to establish the entire facts of the situation. It was not done to discredit the allegations or in any way negatively portray the worker.
4. The Company's position is that an apology is inappropriate as it dealt with the complaint in line with procedures and made every effort to resolve the matter at local level.
The Court has carefully considered the submissions of the parties to this appeal.
The Court has noted the report of the external investigation in this matter. However, in the Court's opinion, the undisputed fact that neither the Claimant nor her Union were interviewed as part of that investigation impairs the value of the report as a definitive endorsement of the internal process.
It is noted that there is a difference of recollection between the management and the Claimant's colleagues who submitted statements concerning certain questions allegedly asked in the course of the investigation. However, even if the Company were given the benefit of the doubt on the specific questions disputed, it is nonetheless clear that the general line of questioning pursued was inappropriate in the circumstances. The Court further accepts that the import of the questions admittedly asked of witnesses imputed to the Claimant some degree of responsibility for the occurrences of which she had complained. That, in the Court's view, rendered the investigation unsatisfactory and unfair.
The Court is further of the view that the decision not to afford the Claimant the benefit of the Company sick-pay scheme after the conclusion of the investigation was wholly unwarranted and unfair. If the Company had reason to doubt the veracity of the medical certificate which she furnished they could have sought a second opinion from a Doctor of their choosing.
In the absence of any medical or other evidence the Company was not entitled to conclude that the Claimant was not genuinely sick and by implication seeking to abuse
the scheme. The Court also accepts that the Company's treatment of the Claimant when she returned to work (being directed to remain isolated in an empty office for the full day) fell short of the standard that could be expected of a reasonable employer.
Having regard to all of the material before it the Court is satisfied that the findings of the Rights Commissioner are fair and supported by the evidence before him. The Court has, however, concluded that the level of compensation awarded should be increased to €10,000. The Recommendation of the Rights Commissioner is amended accordingly.
The Court is further of the view that should the Claimant apply for voluntary severance her application should be favourably considered.
The findings and Recommendation of the Rights Commissioner, with the amendment as to the amount of compensation, are affirmed.
Signed on behalf of the Labour Court
13th November, 2006______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.