ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00008323
Vivian Cullen SIPTU-Trade Union
Aisling McDevitt IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 19/02/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been employed as a cleaner with the respondent since 2007. In her complaint form the claimant complained that she had made a bullying complaint against a colleague in July 2016 – the matter was investigated and she produced a witness statement to corroborate her complaint. She submitted that no finding or conclusion ever issued and complained on numerous occasions about this but received nothing. She asserted that this was a breach of natural justice and fair procedures.
Correspondence was issued to the claimant on the 23rd Dec. 2016 advising the claimant as follows :
“I would like to advise you that your complaint was upheld and is now closed off”
On the 17th.Aug. 2017 , the union wrote to the respondent seeking details of the investigation and enquiring how conclusions were reached and asked the respondent to carry out a workplace risk assessment on behalf the claimant .The union asserted that the claimant’s right to dignity at work had been breached and highlighted the difficult relationship the claimant had with her line manager. It was submitted that the claimant’s complaints had been the subject of mediation but the mediation had failed owing to the alleged conduct of the claimant’s manager. The claimant had been off with stress since August 2017 and was seeking a full risk assessment together with compensation for the respondent’s delay and inaction on her complaints. It was contended that the respondent had failed in their duty of care to the claimant and that there was a foreseeable risk to the claimant’s health and safety. The claimant had lost confidence in mediation and was not prepared to re- enter the process.
Summary of Respondent’s Case:
The respondent refuted the fact that the claimant was not made aware of the outcome of the investigation. It was submitted that the investigation took place in 2016 in accordance with the respondent’s dignity at work policy. The respondent found on the balance of probabilities that the incident complained of had occurred and that the claimant’s dignity at work had been infringed. It was submitted that this outcome was communicated to the claimant on the 23rd.Dec. 2016 and evidence of an email communication sent to the claimant was submitted in evidence and it was contended that no non delivery receipt was received by the company. It was contended that consequently the company had no reason to believe the email had not been received. When they became aware that the claimant had not received it, a second copy of the outcome was immediately dispatched to SIPTU. It was submitted that the respondent only became aware of this when the claimant lodged her complaint with the WRC. It was submitted that the respondent were not in a position to advise of any sanction imposed as a result of the outcome of the investigation because of data protection.
It was submitted that the company had taken steps to minimise the claimant’s interaction with her line manager, that supervision is carried out by an area manager as an interim measure and that the claimant and the alleged perpetrator work in different parts of the client’s site. It was submitted that no further complaints had been submitted by the claimant in the intervening period.
It was submitted that the respondent had offered mediation to the claimant in August 2017 to address any unresolved issues with her line manager and a refusal to engage in the process would be deemed to be unreasonable. It was submitted that the findings of the investigation were sufficiently dissuasive to prevent future interactions of the claimant’s dignity at work. It was submitted that the claimant had taken the position that a precondition to engagement with the respondent was the dismissal of the line manager or his removal from the site and that while the respondent was anxious to engage with a view to addressing unresolved matters for the claimant they could not concede to her demands for the dismissal or removal of the alleged perpetrator.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I have reviewed the evidence presented at the hearing and noted in particular that the parties are now in a stand off situation. The claimant – who was very distressed on the day of the hearing – is unwilling to return to work unless the supervisor who is the subject of her complaints is dismissed or moved to an alternative site. The respondent for their part endeavoured to engage with the claimant about unresolved matters but she walked out of their most recent meeting asserting the precondition to engagement i.e. that the Supervisor be moved or dismissed. I accept the respondent’s contention that the claimant’s position is unreasonable and that they are obliged to observe the rights of all parties to a dispute of this nature.
I have considered the evidence in relation to the issuing of the investigation outcome and while I accept the claimant’s evidence that she did not receive the outcome until it was furnished to her union some months later, the respondent presented equally compelling evidence to demonstrate that an email was sent to the claimant. The claimant insists that she made several complaints seeking the outcome of the investigation while the respondent asserts that the first they knew of the claimant not receiving the report was when the case was referred to the WRC and they then immediately despatched a copy of the outcome letter to SIPTU. It is indeed most regrettable that the claimant had to wait for months to obtain a copy of the report – I have concluded that if the proactive post investigation measures provided for in the policy i.e. “Human Resources will ensure that regular checks are made to ensure that where an allegation has been substantiated, the bullying harassment has stopped …..”, had been implemented the non receipt of the outcome letter would have surfaced. I am recommending that the claimant is paid €1,500 compensation for this failure.
I find that the outcome letter was rudimentary and insensitive and that it has undermined her confidence in the respondent’s management of her complaint. While it complies with the provisions of the respondent’s dignity at work policy, I consider that the claimant is entitled to the full report that was issued to the HR Manager and the General Manager. I consider that she is entitled to know the response of the alleged perpetrator to her complaint and to know how the investigator arrived at the ultimate finding to uphold the complaint – I recommend that she be issued with the full report as a matter of urgency . I further recommend that the policy be revised to provide for furnishing parties with the full report of an investigation into a formal complaint under the Dignity at Work policy.
I accept the respondent’s contention that the claimant is not entitled to be informed of the nature of any sanction imposed as a result of the upholding of her complaint and acknowledge their indication that action was taken against the other party. I further acknowledge the respondent’s efforts to minimise interaction between the claimant and her supervisor. I recommend in full and final settlement of this complaint that the respondent agrees to the union’s request for a risk assessment – in that regard I recommend the parties re-engage with a view to agreeing a party to 1) conduct a full risk assessment in accordance with the Health , Safety and Welfare at Work Act , 2005 and to 2) determine the protective measures that need to be put in place to avoid any risk of any further infringement of the claimant’s entitlement to dignity and safety at work. I recommend that this exercise be completed in advance of the claimant’s return to work and that she resume work when she receives medical confirmation that she is fit to do so.
Dated: 26th April 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea