ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00008230
Parties:
| Complainant | Respondent |
Parties | A Supervisor (2) | A Contract Cleaning Company |
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00010731-001 | 10/04/2017 |
Date of Adjudication Hearing: 29/09/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute 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.
Background:
The complainant made a complaint at workplace level against two managers of bullying and he says he was the subject of retaliation for making them. He has been employed by the respondent since 2006 and is now a Supervisor earning €585.34 per week |
Summary of Complainant’s Case:
The complainant alleges that he was the victim of bullying which was not properly investigated. (He has made a separate complaint that he was penalised for doing so, which is the subject of a separate WRC decision). He seeks a finding that the complaints were well founded and that the procedures used by the respondent to investigate the complaint were flawed and that the outcome should have ‘no standing’. In relation to the substantive grievance the complainant believed that he had been the subject of bullying behaviour on five occasions, involving both managers. One incident involved the managers telling him that he would have to ‘deliver more’ but that this was done in an ‘aggressive tone’ and in a ‘condescending’ manner. At other meetings (five in total) he complains of having been interrupted and being prevented from speaking, of voices being raised and his name being repeated at volume in a threatening way. Regarding the investigation, the specific complaints are that the investigator did not conduct a fair, thorough or impartial investigation; specifically, she applied unjustifiable time frames, did not record all respondent interviews, conducted interviews in the wrong order, denied the complainant the right to comment on some statements, did not probe interviewees sufficiently and did not base her conclusions on the evidence. Also, the complainant’s request for an external investigation was rejected. He also complains that the appeal did not properly review the evidence and merely re-stated the investigator’s conclusions. The substantive matter concerned the fact that the complainant’s hours had been reduced after he made his complaint and that he was asked to attend an investigation meeting about his punctuality and allegedly ‘fraudulent timesheets submitted by him’. |
Summary of Respondent’s Case:
There is a relevant background to the case in that the respondent was experiencing trading difficulties in the complainant’s region which necessitated some staff re-deployment. This was done and transport was arranged by the company to the new location. These arrangements were agreed with the union representing the workers involved, although it is accepted that the arrangement was not popular with the employees involved. The ‘travelling time’ was at the company’s expense. It appeared to the company that, of all those involved, the complainant had the greatest difficulty with the new arrangement, even though it was guaranteeing him full-time work in difficult circumstances for the company. He lodged a grievance on August 21st 2016 against two of his senior managers and at the first meeting with the investigator on September 19th he changed this to an allegation that he was being bullied by them. The investigator decided to proceed on this basis. She interviewed several witnesses and issued her report on November 9th to a member of the Senior Management team. The complainant was sent a copy and invited to comment. The recipient concluded that while some of the behaviour raised by the complainant had taken place and that there were communication issues he not been subject to bullying and harassment, and noting the frustrations arising from the travelling recommended mediation. The complainant was offered an appeal and he exercised his right to do so. The appeal was not upheld but the decision maker again noted the issues surrounding the complaint and offered mediation. The respondent responds to complaints about the procedure by saying that it followed its internal procedures. There was no obligation on it to appoint an external investigator. Issues raised about how questions were asked by the first investigator formed part of the appeal and those issues raised were fully examined and detailed responses were provided in their appeal findings. There was no interaction between the initial investigator and the appeal decision maker. |
Findings and Conclusions:
There are two issues for decision (and a third in a separate referral) The first concerns whether the complaint of bullying is well founded. The second concerns the conduct of the investigation. A workplace investigation is primarily a fact-finding exercise. In the case of a grievance or other complaint by an employee its purpose is to establish whether the complaint is well founded. Where disciplinary proceedings are involved its purpose is to establish the facts on which any charge against the employee might be laid. In this case, there was a very substantial emphasis laid on the investigation and how it was conducted. There is an erroneous view that flaws in an investigation are similar to those in a disciplinary process in that they may, of themselves render the process and any conclusions reached in it void. This may not necessarily be the case. In the disciplinary process where employee rights are being determined, constitutional rights are in play. In most investigations that should not be the case where only facts are being determined. Where the investigation goes beyond this pure fact finding role that may be a different matter. The complainant makes several complaints about the conduct of the investigation.
The conduct of an effective investigation will often in any event mimic closely the requirements of fair procedure, simply to ensure that it is effectively seeking out all the necessary information. In general the steps required are well summed up in a letter from the complainant’s union representative in correspondence to the company on October 13th 2016. An irony of the current case is that notwithstanding the intense criticism of the procedures followed by the investigation it to a considerable extent upheld the factual basis of the complaint. What it did not do was agree that the facts as established grounded a complaint of bullying, for which as will be seen below the bar is set at a high level. Not every heated workplace encounter which results in a person feeling ‘belittled’ for example, unacceptable as it is on general grounds of dignity at work, will represent bullying. It is a word which is, in general, used far too casually in society at large with the unfortunate result that it tends to trivialise what is a very serious form of abuse where it genuinely exists. There is some further discussion of this below. Also, there is no standard format for the conduct of investigations. Many of the points made by the complainant’s union representative about the conduct of the investigation are perfectly valid and the respondent might learn something from them for the conduct of future investigations. However, that is not the same as to say that her views represent the only, or best way to conduct an investigation, or more critically that failure to do so will render the investigation in some way defective or even void. The obligation that falls on an employer is to be diligent and efficient in the conduct of the investigation. Of course, there may be circumstances where alleged behaviour falls so far outside (or inside) this obligation that this will be readily apparent and require intervention.
The definition of bullying contained in most workplace policies is the standard, commonly accepted definition, which is as follows.
“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying”.
This has been approved in several decisions of the Superior Courts This has been approved in several decisions of the Superior Courts; for example Quigley -v- Complex Tooling & Moulding Ltd [2008] IESC 44 and some other decisions of the courts are also of relevance here. In Glynn v Department of Justice, Kearns P. (the President of the High Court,) in his judgement stated that bullying;
“…involves a deliberate and repeated course of action designed to humiliate and belittle the victim. It is conduct which is intended to reduce that person’s sense of self-worth. It may occasion significant pain and suffering to any person so treated.”
Judge Kearns again;
“It follows that the first question that must be asked in every bullying case is whether the behaviour complained of, by reference to an objective test, imports that degree of calibrated inappropriateness and repetition which differentiates bullying from workplace stress or occupational stress.”
He further stated:
“This [definition] wording must be taken as requiring an objective test to determine if bullying has occurred. The test must, for reasons of common sense also, be an objective one given that any other would leave every defendant vulnerable to allegations of bullying based on purely subjective perceptions on the part of a plaintiff who might contend that straightforward situations at work or otherwise were constructed by him/her as amounting to bullying.”
In Ruffley v Board of Management of St Anne’s School [2015] IECA 287 in its judgement of a bullying complaint the Supreme Court referred to the Kearns P. judgement and while also addressing the issue of repeated behaviour Irvine J. further identified:
“Given that the test as to whether conduct amounts to bullying is an objective one, the threshold at which conduct may be considered inappropriate, as opposed to wrong, harsh, insensitive or misguided, cannot be decided in a vacuum and must be assessed in the context of all the relevant circumstances….If the determination was to be made by reference to the subjective response of the individual, any rebuke of a worker could potentially amount to bullying….Accordingly, I have concluded that a Court must first assess whether the conduct or behaviour alleged is objectively to be considered as repeated inappropriate behaviour. If so, it must then determine objectively whether it is reasonably to be regarded as undermining the individual’s right to dignity at work. Any assessment of what is “appropriate” or “inappropriate” behaviour in a workplace context must depend on the relationship and relative positions of the individuals and the full factual context.”
While this case was successfully appealed in relation to the award this is still a good statement of the criteria related to bullying.
Note the language here; references to the ‘degree of calibrated inappropriateness and repetition’ and ‘that degree of deliberateness which is the hallmark of bullying’ and that the behaviour be ‘designed to humiliate and belittle the victim’.
These are demanding criteria, which contain objective tests and not every pressurised workplace encounter will necessarily fall within them.
A WRC adjudicator is at the considerable disadvantage in assessing specific allegations of not having access to the workplace in which the allegations were based, and to the witnesses. A WRC Adjudicator is not a workplace investigator
As noted above there may be circumstances where alleged behaviour falls so far outside (or inside) the criteria that this will become readily apparent and require appropriate intervention and correction.
But it is on an employer that the first duty falls to properly investigate the complaints having regard to the criteria and factors referred to above.
As noted above where an investigation is a fact-finding exercise it is not generally governed by strict principles of natural justice or fair procedure at their highest because it is not making an adjudication on rights, although where it does do so it will attract that higher standard of compliance with fair procedure principles.
The respondent stated that all interviewees agreed statements of their interviews. Regarding the conclusion on bullying the investigator stated in evidence that she was familiar with and applied the definition of bullying in the Code of Practice and the company procedures. Her conclusion was; Based on my findings I can conclude that I have been unable to find any evidence that [the complainant] has been bullied by either [respondent]. She also concluded that the respondents in the complaint were frustrated with the complainant’s ‘lack of co-operation and resistance at times, when they have been trying to ensure employment to all in the region’. I have also reviewed in detail the grounds of the appeal and the Decision maker’s decision. She addressed some twenty-four grounds of complaint. She set out a comprehensive, reasoned response to all twenty-four in her decision. Of the twenty-four only one relates to the substance of the bullying complaint; most of the others are procedural, some of a very petty nature, some are irrelevant to a bullying complaint, some relate to the separate disciplinary proceedings against the complainant but only one of them goes to the heart of the matter i.e. the bullying complaint. Of the one that is relevant, the facts are actually upheld on appeal. That related to the raising of voices by one of the then respondents. The Appeal decision maker held that she found his behaviour ‘unacceptable’ and stated; ‘While I do not find that he was bullying and harassing you, it is clear that frustrations and communications problems with all parties have led to a breakdown of a positive working relationship. Inappropriate language is not acceptable from any employee. This will be addressed with all parties internally. So, for all the concentration on procedural matters by the complainant both in the course of, and subsequent to the processing of the complaint the ‘bottom line’ is that the facts underpinning the complaint were essentially upheld; but were regarded as insufficient to ground a bullying complaint. In that sense, it seems that at least in part the complaints were upheld. Most of the complaints were similar and related to the tone used at meetings; March 20th, interruptions, aggressive tone, condescending manner, June 20th,‘ tone and demeanour humiliating, July 21st, interruptions, raised voice, ‘belittling’, July 27th repetition of complainant’s name etc. I conclude that the investigation was conducted to a reasonable standard and that, on the basis only of the evidence adduced before me the incidents complained of would not pass the threshold required to satisfy the requirements of the various definitions of bullying. They were undoubtedly uncomfortable for the complainant but in a company coping with trading challenges it is likely that frustrations will occasionally manifest themselves; voices will be raised, there will be interruptions etc. This is a long way from ‘calibrated acts designed to humiliate and belittle the victim’. The degree of emphasis laid on the conduct of the investigation is misplaced; the key test is whether material or decisive evidence was overlooked, and then whether the decision maker reached reasonable conclusions based on that evidence. I find that on both counts the process and the outcome were acceptable. I also find, on the basis of the complainant’s submission and evidence that the sequence of acts complained of fall well short of the criteria necessary to ground a complaint of bullying. The complaint therefore fails. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons fully set out above I do not uphold complaint CA-10731-001 and it is dismissed |
Dated: 4/12/17
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Investigation, bullying |