ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011079
Parties:
| Complainant | Respondent |
Anonymised Parties | Clerical Officer | Bus Company |
Representatives | Terry Gorry Terry Gorry & Co. Solicitors |
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Dispute:
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-00014790-001 | 05/10/2017 |
Date of Adjudication Hearing: 06/02/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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 has been employed with the Respondent as a Clerical Officer since 2000. The Complainant referred a dispute to the Workplace Relations Commission on 5th October 2017 in relation to a Formal Bullying and Harassment complaint she had lodged with the Respondent in January 2016. This complaint was investigated and a report issued. The dispute concerns the Respondent’s failure to act on the recommendations arising from that report. |
Summary of Complainant’s Case:
The Complainant commenced employment in August 2000 as a Clerical Assistant. She was promoted to Clerical Officer in 2003 and worked in a number of Garages of the Respondent. She stated that she was the only female Employee working in this Garage on days. The Complainant stated that she had made verbal complaints to her Line Manager over a period of some 10 years concerning how she was being treated by a named individual in the Garage. The Complainant made a formal complaint to the HR Department in January 2016 that she was being bullied and harassed by this named employee. Following an extensive 6 month investigation, including the taking of 7 witness statements and five issues were identified in relation to the investigation. The findings from the Investigation was published in June 2016 and they found that the incidents complained of constituted Bullying and Harassment on the gender ground. This was a detailed report of June 2016 in relation to each issue raised by the Complainant. The Recommendations provide as follows – The working and personal relationship between the Complainant (named) and (named) has broken down…The current situation where by (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. It also recommended that “the findings in this report be reviewed and acted on by (named) Chief Engineer”. The outcome is that both the Complainant and the named employee continue to work in the same garage. The Respondent did confirm at the Hearing that the named employee was the subject of a Disciplinary Hearing and that he was suspended and was issued with a Final Written Warning. The Complainant has been offered counselling and mediation and she has also been offered a transfer to another work location. However the Complainant had sought a transfer to the named garage for personal and family reasons in 2006. The Complainant stated that the more appropriate action by the Respondent would be to move the named employee to another location. The Complainant’s Legal Representative referenced a n umber of Codes of Practice in respect to the issue of Bullying and Harassment. |
Summary of Respondent’s Case:
The Complainant has been employed in the named Garage/Depot looking after payroll for some 17 years. The named Employee is a Supervisor in the same Garage. The Complainant requested a meeting with the Respondent’s Employee Development and Equality Executive (Named) on 25th January 2016 and at their meeting on 27th January 2016 the Complainant informed the Executive that she would be making a complaint of Bullying and harassment against a named employee. She was offered mediation which she declined and she was informed of the informal procedures. A complaint was lodged and an investigation was carried out and found that the Complainant had been bullied and harassed by the named Employee – her Supervisor. The employee received a two week suspension without pay. He lodged an appeal and the appeal was heard on 31st August and the appeal was denied. The Complainant was informed in December 2016, through her trade union representative, that the findings of the investigation had been upheld. The Employee received a two week suspension without pay which was considered the appropriate action. A dismissal or a move from the garage was not deemed to be warranted. The Complainant lodged a complaint with the WRC on 5th October 2017 and in this complaint she listed a number of incidents in 2016 and 2017 whereby the actions of the named employee whom she had lodged a formal complaint against in January 2016 left her feeling intimidated and uncomfortable in her workplace. However the Respondent stated that the Complainant had made no formal complaint through the procedures and these complaints were not formally investigated. However, the named employee was spoken to by Management but denied that he had acted in any inappropriate way towards the Complainant but did agree to limit his communication with the Complainant. The Respondent had agreed to go to mediation through the WRC and both parties attended but no agreement was reached as the Complainant wished the named employee to be moved from the Depot, which is a Disciplinary Sanction which the Respondent believes is disproportionate and unwarranted. The Respondent referenced the decision of the Supreme Court in the Ruffley Decision. The Respondent argued that they had taken all reasonable steps to prevent any harassment or bullying of the Complainant by the named employee and the Complainant has not utilised the Dignity at Work Procedures of the Company to lodge a complaint following the investigation that was completed in June 2016. |
Findings and Conclusions:
On the basis of the evidence and written submissions from both Parties I find as follows – The referral to the WRC concerns the implementation by the Respondent of the Recommendations of June 2016 arising from the Report of the Investigation into the formal complaints lodged by the Complainant against the named employee in January 2016. The Investigation Report of June 2016 is very clear when it states as follows – “The investigation team find that both the working and personal relationship between (the Complainant named) and (the employee named) has broken down. The current situation whereby (Complainant) feels intimidated and uncomfortable in her place of work can no longer continue. Based on the facts gathered, the investigation team recommend that the findings in this report be reviewed and acted on by (named) Chief Engineer”. The Safety, Health and Welfare at Work Act, 2005 places an obligation on employers to provide safe places of work for their employees where it states that there is a duty on employers “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees” and to prevent “any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk”. The Health and Safety Authority has a statutory Code of Practice S.I. 17/2012 as does the Equality Authority have a Code of Practice on Sexual Harassment and Harassment It is clear that the Complainant did make verbal complaints of ongoing bullying and harassment against the named employee since June 2016 and she did lodge a complaint with the WRC dated 27th February 2017 in relation to incidents in July 2016 – August 2016 – October 2016 – November 2016 – December 2016 and January 2017. Mediation took place at the WRC but no settlement was possible as the Complainant was seeking the transfer of the named employee to another depot and the Respondent was of the view that this would be a disciplinary sanction that was both disproportionate and unwarranted. The Complainant withdrew her complaint of February 2017 from the WRC. These complaints had been made verbally by the Complainant and she also had lodged a dispute with the WRC yet the Respondent confirmed at the Hearing that although they had a meeting with the Named Employee they did not conduct an investigation. I find that the Complainant continues to feel intimidated and uncomfortable in her place of work as evidenced by these complaints arising after the Investigation Report was published in June 2016. Yet the investigation report clearly says “The current situation where by (the Complainant named) feels intimidated and uncomfortable in her place of work can no longer continue” (my emphasis). Yet it has continued. I find that the Respondent has not acted in the appropriate manner to both implement the investigators report and to protect the Complainant. While I have no sanction or jurisdiction to propose that the named employee be moved to a different location to protect the Complainant, as this could be deemed to be a Disciplinary Sanction without due process, I do recommend the Respondent review the Investigators Report and it should be acted on by the Respondent as recommended by the Investigator. I further recommend that the Respondent pay the Complainant compensation of €5000.00 due to her ongoing situation. This sum to be paid to the Complainant within 42 days of the date of this Recommendation.
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RECOMMENDATION
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
In accordance with Section 13 of the Act and in view of my Findings above I recommend that the Respondent review the findings of the Report of June 2016 and act on it as recommended by the Investigator. I further recommend that the Respondent pay the Complainant compensation of €5000.00 within 14 days of the date of this Recommendation due to the ongoing situation where the Complainant continues to feel intimidated and uncomfortable at work |
Dated: 13th April 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Implementation of Bullying/Harassment Investigators Report – Ongoing situation – recommendation to review and act on the Report – award compensation of €5000.00 |