ADJUDICATION OFFICER RECOMMENDATION.
Adjudication Decision Reference: ADJ-00001488
Dispute for Resolution:
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-00002073-001 |
21st January 2016 |
Date of Adjudication Hearing: 5th April 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Mandate were in dispute with the Respondent in relation to the investigation and outcome of a complaint made by the Complainant.
Summary of Trade Union Case:
Following a recent investigation into a compliant I made against my Store Personnel Manager for undue and unwarranted attention amounting to harassment I am not happy with how the investigation was conducted nor its outcome. |
The Trade Union said the dispute related to a formal complaint the Complainant made against the current Store Personnel Manager of the Respondent, in a named area and the manner in which the Respondent investigated it.
The Trade Union said the Complainant commenced his employment as a general sales assistant in the Respondent’s Store in a named location on 8th October 2012 and he is currently employed on a banded hours contract of employment of 25 – 30 hours per week and his pay rate is €11.97c per hour. He is currently the Store Assistant Shop Steward.
On 30th July 2015, the Complainant was called to a Meeting with the Store Personnel Manager, to discuss his personnel file and what should and should not be included in it. After this Meeting it was alleged by way of a formal complaint by the Store Personal Manager that the Complainant had behaved in a manner that was aggressive and called her a “two faced bitch”. Following investigation of this complaint the Investigation concluded that they “could not find any evidence that this incident occurred as the allegations mentioned.”
The Trade Union said it should be noted that investigation statements were made by the Store Personnel Manager and 2 other Store employees on 30th July 2015, the same day the incident was alleged to have taken place. Investigation meetings took place on 1st September 2015, the same date that the allegations was made known to the Complainant who had been immediately suspended with pay pending the Investigation. The Trade Union said none of the stated witness statements were provided other than what is contained as an appendix to this submission. The stated review of the CCTV footage was not presented to the Complainant and/or his Representative for appropriate examination and if necessary due challenge. The Trade Union’s position is that not all of the CCTV footage has been examined that if done so would demonstrate that both of those involved left the Meeting Room in a calm and collected manner.
Following the Investigation Outcome, on 2nd October 2015, the Complainant made a formal complaint under the Respondent Grievance Procedure in which he states “defamation of character by (the Store Personnel Manager)” By letter of 14th November 2015, from the Respondent’s Store Manager in a named location, who was the assigned Investigating Officer, the Complainant was requested to attend a Meeting along with his named Trade Union Representative (a full-time Official) on 20th November 2015.
The Trade Union said that as the Complainant was not being updated as regards the progress of the Investigation, they wrote on his behalf to the named Store Manager on 12th January 2016. The Investigation Outcome, which was dated 12th January 2016, was received on 20th January 2016.
The Complainant was not happy with the Investigation Outcome and the length of time it took to complete, so he subsequently directed that a complaint be referred to the WRC.
The Trade Union said that it is their position that both investigations, most especially that carried out for the Complainant’s complaint, are flawed.
The Trade Union said that the Store Personal Manager and 2 other employees acting as her principal witnesses made statements dated 30th July 2016, the same date on which the incident occurred, in the absence of other statements these are assumed to be her ‘evidence in chief’ and they have no reason to believe otherwise.
Alongside the fact that no CCTV evidence has been presented, then the Complainant is firmly of the view that the Store Personnel Manager’s complaint against him has been contrived to maximise as much damage as possible regarding his current and future employment prospects with the Respondent. Furthermore in the named Store Manager’s outcome notification he states at paragraph 6 on page 2 “there were not witness statements”. The Trade Union said that whatever the reason, the nett effect has been a serious impact on the Complainant’s physical and mental wellbeing causing him to be occasionally absent from work as a result.
In addition the Complainant is further of the view that his complaint has not been appropriately investigated, and referred to the fact of their having to arrange a meeting between the in-store representatives and senior local management was not examined, during which the Trade Union said there were clear relationship problems, most notably the Store Personnel Manager’s assertion at the same meeting that she felt the two representatives were on a “campaign to get rid of her”.
The Complainant also asserts that the CCTV – whether examined or not at either of the investigations - is very important as it would demonstrate that neither the Complainant or the Store Personnel Manager left the Meeting of 30th July 2015 in a manner that would suggest that there were grounds for the Personnel Manager’s complaints - and as such this would exonerate the Complainant of wrongdoing during the Meeting and subsequently his good name.
It should be noted that the length of time taken to complete both investigations and outcome declarations were different. Even allowing for the Complainant’s sick leave absence in August 2015, the Store Personnel Manager’s complaint was investigated and dealt with in a period of 6 – 7 weeks, which is considerably shorter than the nearly 3 month period it took to deal with the Complainant’s grievance complaint and the Trade Union submitted that this calls into question the procedural integrity of the Respondent’s actions when dealing with the Complainant’s grievance.
In light of the forgoing, the Trade Union and the Complainant sought that the claim be upheld and further that the Respondent’s inertia in dealing with the Complainant’s complaint is appropriately compensated for by awarding him €500 for that.
Summary of Respondent’s Position:
The Respondent said the Complainant contests that he is unhappy at the manner in which a complaint he submitted alleging “undue and unwarranted attention amounting to harassment from the Store Personnel Manager” was investigated and the outcome of the Investigation. The Respondent said they reject this assertion and submit that the Complainant was treated fairly within the Respondent’s policies.
The Respondent said the Complainant commenced employment with them as a customer assistant on 18th October 2012.
On 31st July 2015, the Store Personnel Manager submitted a grievance against the Complainant stating on 30th July 2015 he had acted in an extremely aggressive fashion towards her, verbally abused and intimidated her. On 12th August 2015, the Complainant’s Line Manager met with him and suspended him on full pay pending an investigation into the alleged incident.
On 13th August 2015 the Store Manager wrote to the Complainant requesting him to attend a Meeting on Monday 17th August 2015, to investigate the allegations of the Store Personnel Manager On the date of the scheduled meeting the Complainant rang in sick and accordingly the Meeting was suspended. On 24th August 2015, the Store Manager again wrote to the Complainant informing that the Meeting was rescheduled for 1st September with the named Manger of another of the Respondent’s stores. This meeting was duly held as scheduled.
The Investigating Manager issued his Report in which he concluded that he could not find evidence that the incident of intimidation and aggressive behaviour had occurred as alleged and that taking everything into account his decision was that the issue would not go forward to a disciplinary hearing, he further recommended that a Mediation Meeting should take place with an external trade union representative and a store manager from another store and that this would close the case. The Complainant returned to work on 15th September 2015.
The Respondent said that on 20th November 2015 the Complainant issued a Stage 1 grievance against the Store Personnel Manager alleging “defamation of character”, which was sent to the Regional Office. On 20th November 2015, the Store Manager in a different location commenced an Investigation into the allegation made by the Complainant and he conducted a detailed examination, interviewing 8 witnesses.
On 12th January 2016, this Investigating Manager issued the outcome of his Investigation in writing to the Complainant stating that:
- He could not confirm that it could be proven that the Store Personnel Manager had defamed or tarnished the Complainant’s name in any way; the allegation could not be substantiated.
- In terms of the duration of his suspension during an investigation into the complaint by the Store Personnel Manager, he found that suspension was appropriate considering the fact that there was an allegation of aggressive and abusive behaviour towards a member or management, which if found to be true would be serious misconduct. He also found that the Complainant’s absence on sick leave had contributed to the duration of this period.
He also recommended that there should be mediation carried out between the two parties to develop and improve the working relationship. In this correspondence he gave the Complainant the option to appeal the findings of the Investigation to the Employee Relations Manager of the Respondent within 5 days in accordance with Company Grievance Procedure agreed with the Respondent and the trade unions.
On 25th January 2016, the WRC Complainant Form was received by the Respondent. On 27th January 2016, the Regional Personnel Manager wrote to the Complainant reminding him that he had not exhausted the internal grievance process and asking if it was his choice to continue with the internal appeal he should do so within 5 days.
On 3rd February 2016, the Trade Union wrote to the Regional Personnel Manager stating that in their view the procedural integrity of the investigation into the Complainant’s complaint was flawed and that he was no longer bound to follow the internal grievance procedure and they were appealing the matter to a third party.
The Respondent said that at all times the Complainant was treated with respect and integrity by them and he was given a fair hearing on all of his grievances. The Respondent attempted to resolve any outstanding issues that the Complainant had within the internal grievance procedure. The complaint that the Store Personnel Manager made against the Complainant was unsubstantiated. The Respondent said this does mean that did not happen, therefore the Complainant’s grievance of defamation of his character could also not be substantiated.
The Respondent said the Complainant chose to abandon the internal grievance process without exhausting it, citing that the investigation of his grievance had taken to too long. The Grievance Procedure states at Stage 4: “although it is recognised that it is in the interests of both staff and the Company, to agree and abide by the grievance procedure, it is also recognised that in certain circumstances resolutions may not be possible. If, having exhausted all stages above, agreement is still not possible and the grievance remains unresolved, where appropriate, the matter may be referred to the appropriate third party.”
The Respondent said the time gaps in terms of the investigation process were explained by the complexity of the grievance and the fact that an external store manager had to conduct the investigation and there were 8 detailed interviews to conduct during the investigation. The overall complexity of the investigation did in fact extend the time required. Nonetheless, the findings, which the Complainant found unsatisfactory, were not appealed. The Respondent said that as such the Adjudicator should not uphold the claim as these procedures are agreed with the two named trade unions and are expected to be adhered to by all parties concerned. The Respondent said the mere citing on 3rd February 2016, that the procedures no longer applied after the Complainant had already submitted a complaint to a third party does not exonerate the Trade Union and the Complainant from adhering to the agreed stages of the grievance procedures.
The Respondent asked the Adjudicator to dismiss the claim in it’s entirely as the Complainant has not followed the internal grievance procedure. The Respondent said that notwithstanding this fact they would submit that a full, fair and impartial investigation was carried out and the outcome was based on an objective and impartial determination of the facts of the case.
Following the submissions of the Trade Union and the Complainant in relation to CCTV footage the Respondent said that this was looked at and there was no coverage or footage of the area at and around the outside of the Office where the meeting between the Complainant and the Store Personnel Manager that took place on 30th July 2015, and that accordingly there was no relevant footage in that respect.
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13(3) of the Industrial Relations Acts 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
The Respondent submits that I should reject the claim in its entirety on the grounds that the Complainant did not fully utilise or exhaust the internal grievance procedure. It is suggested that the failure of the Complainant to adhere to the internal grievance is of itself sufficient grounds for the claim to be rejected and dismissed.
In this respect I note that the Company Grievance Procedure is agreed between the Respondent and the two named trade unions, and the Complainant is a party to it through his membership of his Trade Union.
I note that when the Respondent wrote to Complainant in this respect on 27th January 2016, about his failure to appeal his grievance in line with the agreed Company/Union Procedures, a response was received from the Trade Union by letter of 3rd February 2016 in which it was stated that the Complainant “is currently of the view that the Company’s handling of the above was such that all procedural integrity no longer applies and thus has rightfully no faith and/or trust that exercising any further stages of the grievance will be of benefit to either side.” I note that no details of the lack of procedural integrity is provided save for the statement; “It shouldn’t go unnoticed that a recent grievance lodged against (the Complainant) was treated in a wholly different manner of being timeously examined and managed as compared to (the Complainant’s) current case.”
This last statement is to entirely miss the purpose of an internal appeal, which is to examine and determine if the original process and decision observed fair procedures, consider if the decision was reasonable and fair and any other relevant factors. Any issues or concerns that the Complainant had in relation to the matter, or the handling of it, could and should have been raised as part of an appeal and it is only after that occurred that it would be appropriate to have an involvement of a third party. The Complainant and his Trade Union cannot pick and chose which part of the Procedural Agreement they freely entered into they will abide by and I have no doubt that if the position were reversed and the Respondent was refusing to abide by and/or allow the Complainant access to some part of the grievance procedure they would be objecting in the strongest terms. Just as the Respondent must abide by the terms of the Procedural Agreement so must the Trade Union and the Complainant.
Nor indeed am I or the Complainant entitled to prejudge the outcome of an internal appeal, the fact is we will never know what the outcome would have been as it was never tried.
Based on the fact of the failure of the Complainant to follow and exhaust the internal grievance procedure agreed with his trade union, which is an egregious failure, I must and do reject the claim. While this decision is of itself sufficient to dispose of the matter in the interests of completeness I am briefly addressing the other substantive matters raised by or on behalf of the Complainant.
In relation to the first complaint (i.e. the one against the Complainant) the Trade Union states it should be noted that investigation statements were made by the Store Personnel Manager and by 2 other Store employees on the day of the alleged incident and that the investigation meetings took place on the same date that the allegations were made known to the Complainant. There is absolutely nothing wrong or improper about this timeline, indeed it is in line with good practice. It is appropriate and indeed best practice that statements be prepared as close as possible to any alleged incident, while the matter is still fresh in the minds of those making the statements, rather than waiting or delaying which runs the risk of relying on memory of incidents some time after they have happened. It is also in accordance with good procedures and best practice to commence an investigation immediately upon notifying the party against whom the complaint is made. I can see no merit in this element of the submissions and it is rejected by me.
I accept that there was no CCTV coverage of the area at and around the Office in which the Meeting with the Complainant and the Store Personnel Manager took place on 30th July 2015 and accordingly I can no merit in this element of the submissions and it is rejected.
It was submitted that the Store Personnel Manager’s complaint against the Complainant “has been contrived to maximise as much damage as possible regarding his current and future employment prospects with the Respondent.” This is a most serious charge, for which no credible evidence was presented to me; indeed no evidence at all other than the bald statement quoted above was produced to the Hearing. Nor can I see any evidence that there was any damage to the Complainant’s current or future prospects with the Respondent, his position with the Respondent remains unchanged since the complaint was made. I see no merit in this element of the submissions and it is rejected by me.
The Trade Union refers to the difference in the timescale taken to deal with both complaints. In the case of the first complaint, the one made against the Complainant, it took just over 6 weeks – from 31st July to 14th September to conclude. In the case of the second complaint, the one made by the Complainant it took 14 weeks, from October 2015, to 12th January 2016. However there were very valid reasons for this difference in time. Firstly the nature of the complaints made by the Complainant required a complex and detailed investigation, which plainly extended the time involved. Secondly it was necessary to have this complaint dealt with by an external person who had no involvement with the first one and this meant appointing a Manager from a Store that was some very considerable distance from the one the parties worked in. This caused considerable delays in concluding matter, especially as it became necessary to conduct 9 detailed interviews. It is also a fact that the period involved included the Christmas and New Year period, which apart from being probably the busiest time of the year for all involved, would be a period when taking into account holidays and family arrangements would undoubtedly delay matters. I can see no credible evidence that there was deliberate procrastination on the part of the Respondent in concluding that investigation. Nor can I see or accept that the extra period of 7/8 weeks compared to the period taken to deal with the first complaint was such as to render the investigation or the result as unfair or compromised to such a degree that it renders it in breach of fair procedure, natural justice or the provisions of the Company/Union agreed procedures. Accordingly I do not see merit in this element of the submissions and they are rejected by me.
The Complainant submits that he was “defamed” by the complaint of the Store Personnel Manager against him and that his good name was damaged. I can see no evidence whatsoever to support such a contention – and this is particularly so in circumstances where that complaint was in fact rejected and not upheld. This element of the submission is without merit or substance and it is rejected by me.
I note that what occurred in the instant case was that (a) the Store Personnel Manager made a complaint against the Complainant, which following investigation was rejected and was not upheld and that outcome was accepted by the Store Personnel Manager (b) when that matter had concluded the Complainant made a complaint against the Store Personnel Manager, which also following investigation was rejected and was not upheld. The outcome was the same for parties and it is difficult not to reach the conclusion that both parties should have accepted the outcome and moved on from the matter, perhaps with availing of the suggestion of mediation to improve the working relationship going forward as per the suggestion/proposal of the Respondent.
Based on the foregoing I do not accept that the Complainant was treated unfairly or unreasonably by the Respondent in these matter and accordingly I do not see merit in the claim; it is rejected by me and is not upheld.
Dated: 7th July 2016