INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal of Rights Commissioner's Recommendation R-043739-Ir-06/Jt
2. The Claimant has been employed with FÁS and its predecessor for over thirty - five years. He is currently a Grade 5 manager in the Services to Business division (STB). He played a significant part in developing and promoting the Excellence Through People programme within the STB division and it is his claim that he carried out the duties of a Director. In 2005 the Claimant was unsuccessful in a competition for a post as Director. A Director was assigned to the STB division. Not long after this the claimant felt that his employment situation had deteriorated. It was his opinion that he had no choice but to take a case of bullying against the new director under the agreed Dignity at Work Policy 04-46-04. An external investigator was appointed who issued his findings under the un-agreed Policy 04-46-05. The Claimant requested a review of the findings under the agreed Policy. The review findings were issued in June 2006 and were unsatisfactory to the Claimant.
The matter was referred to the Rights Commissioner for investigation and recommendation. On the 13th November, 2006, the Rights Commissioner issued his Recommendation as follows:
"I believe that the investigation in relation to the alleged bullying was conducted in a fair manner. I note that the claimant at no stage objected to the investigation being conducted under the policy document that it used
It is not acceptable that the investigation took four and a half months and the review even took longer, up to five months. It is not in the interest of neither party and I recommend that both parties (SIPTU and FÁS) agree a time frame for Investigations..........
I make no award for compensation"
On the 19th February, 2007 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 12th July, 2007.
3. 1 The investigation was carried out under a new policy which had not been agreed with the Union. The significant change in the new policy is that it allows non-FÁS people to be interviewed by the investigator. The Claimant believes the external person interviewed during his review was biased against him as the Claimant had opposed the views of the external person on a number of issues. It is unacceptable that any employer would have two versions of the one Policy.
2 The Union objected to the use of the un-agreed Policy on numerous occasions when it became apparent that FÁS had requested the investigator to proceed under Policy 04-46-05. The Union again objected when it became apparent that FÁS had two different versions of the un-agreed 04-46-05 Policy. The Union believe that FÁS reverting to the agreed Policy 04-46-05 for the review of the initial findings is proof of their objections.
3 The fact that the Claimant received a disciplinary letter from the perpetrator of the alleged Bullying against him, with the full knowledge of the HR Department during the investigation, is also in breach of the bullying Policy. The Claimant has been put through a significant amount of unnecessary stress in his working and personal life. The Claimant has suffered the loss of responsibility, loss of duties, loss of authority and damage to his reputation.
4. 1 The allegations of bullying have been thoroughly investigated. The Claimant has been afforded an exhaustive appeal process. However, the Court is now being asked to hear yet another appeal against the conclusions of an earlier appeal against the considered findings of the original independent bullying investigation report
2The Rights Commissioner found that the bullying investigation was conducted in a fair manner. The allegation that the investigation was not carried out in accordance with FÁS Policy has already been dealt with as part of the internal appeal process and also at the Rights Commissioner hearing. The Rights Commissioner did not accept this line of argument and noted in his Recommendation that the Claimant had not objected at any stage to the policy under which the investigation had been conducted.
3 The non-staff person interviewed by the independent investigator was referenced by the Claimant in his original written complaint. Therefore, he was a legitimate witness.
In his Recommendation the Rights Commissioner recognised that the report of the external investigator found fault on both sides in the events leading up to the Claimant's complaints. The Court agrees with that conclusion. The Rights Commissioner also concluded that an award of compensation was not warranted. The Court also concurs with that conclusion. In these circumstances the Rights Commissioner's Recommendation is upheld.
It is, however, clear to the Court that the subject matter of the dispute giving rise to this appeal is symptomatic of more serious underlying problems affecting the Claimant and his employer. These difficulties have resulted in a state of affairs in which the continued viability of the working relationship between the parties is being placed in jeopardy. The Court believes that the most helpful approach which it could adopt in the case is to direct the parties toward addressing this core problem rather than dealing, at length, with issues which are mere manifestations of that problem.
The Court does not believe that it would be helpful to apportion blame for what has occurred. Rather, it believes that a final and determined effort should be made to resolve the acknowledged underlying difficulties between the parties. Accordingly, the Court recommends that the parties should engage in an intensive process, with the assistance of an outside facilitator or mediator, with a view to restoring a positive and professional environment in which the Claimant can continue to make a valuable contribution to the development of the Organisation.
The process should commence as a matter of urgency and should be brought to finality with due expedition.
Signed on behalf of the Labour Court
6th August, 2007______________________
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.