ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011373
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: 22/01/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
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.
This is a complaint that the WRC Code of Practice on Addressing Bullying in the Workplace has been breached. The complainant’s representative asks the WRC to adjudicate upon this complaint.
The complainant commenced employment with the respondent as a barman in 1987. He holds the position of senior barman, working 39 hours a week and is paid a gross weekly salary of €760. His working relationship with the respondent was unremarkable up until December 2016 and deteriorated thereafter.
Due to a series of incidents between the complainant and the respondent, the complainant has been on sick leave since 10th September 2017 and has not returned to work since that date.
He submitted his complaint to the WRC on 23/10/17.
Summary of Complainant’s Case:
The complainant enjoyed a good relationship with his employer up until about 2016.
The respondent’s son took over the business and from the complainant’s perspective his relationship with the respondent deteriorated from 2016. The complainant gave evidence of a number of points of conflict- about requests for time off not being granted, more favourable treatment for colleagues requesting leave, how he believed he was being monitored on CCTV to a greater extent than colleagues and inferences that he lacked ambition. He took offence at comments made to him by the respondent as to how he should address customers. He objected to being chastised over late arrival at a meeting scheduled on his day off. The respondent questioned his booking of rooms for a family function which had been agreed previously in accordance with agreed procedure. He went on certified sick leave due to work -related stress on 11th September and has remained out on sick leave.
He did not invoke the grievance procedure as to do so would require him to engage with the respondent manager, the person who had caused him distress. The procedure did not identify the external body beyond the owner/ publican to whom an employee could refer a complaint. Hence, he referred his complaint to the WRC.
His union representative described the respondent’s behaviour towards the complainant as conduct which broke the complainant- an employee of almost 30 years as bullying and asserts that he will be unable to return to work with the respondent and requests that the WRC reward the complainant accordingly.
Summary of Respondent’s Case:
The respondent has committed to pay the complainant any monies due concerning leave and to correct practices concerning the taking of annual leave.
The respondent’s representative has agreed to rectify the grievance procedure and name the persons to whom an employee can refer a complaint.
The respondent asked to note that the meeting to which the complainant arrived late was a very important meeting concerning security and the only time the meeting could be held was when the pub was closed. An armed robbery had occurred at the premises the previous week.
The matter of the booking of a room for a family function was queried and then agreed.
The respondent advised that CCTV was used to monitor customer behaviour and was applied to all staff as necessary. Other staff have been advised of respondent’s observations of CCTV footage.
The respondent states that the complainant did not engage with the agreed procedures.
The respondent’s written evidence records requests to meet the union representative, requests details of complaints, suggests meetings with the unions representative.
Findings and Conclusions:
I am obliged to examine the complaint under section 13 of The Industrial Relations Act 1969.
The respondent has agreed to correct the grievance procedure and to name the third parties to whom an employee can refer a complaint. I recommend that this should be done forthwith. This should avail the complainant.
The complainant has characterised the complaint to be one of bullying and has provided details as to the basis of this conclusion. The respondent submitted Company Procedure for Dealing with Bullying and Harassment. The onus is on the complainant to initiate the complaint against the perpetrator and then, if unsuccessful or if the complainant wishes to proceed straight away to a formal investigation, the company can appoint an external investigation team or third party. This stage was not activated by the complainant. Neither was the grievance procedure formally invoked. Therefore, the internal dispute resolution procedures have not been formally activated by the complainant. There is no evidence of the exact complaints being put to the respondent in advance of submitting same to the WRC. The complainant became unwell and left and has not resumed work since.
I recommend that the respondent names the contact persons and the third parties to whom a complaint under this procedure can be referred
A medical certificate was submitted but contrary to what was asserted there is no statement to the effect that the complainant must not engage with the respondent.
I conclude that there is an obligation to instigate the internal procedures. I accept the point about the absence of named external persons led him to submit a complaint to the WRC but the respondent’s written evidence demonstrates efforts to set up meetings and mediation.
The respondent could have been more proactive in identifying the channels through which the complainant could route his complaints. The complainant is on sick leave and has incurred a loss of income. The respondent is aware of options under the sick leave scheme. The respondent is represented by a large representative organisation who would have knowledge of and access to Employee Assistance Schemes. I recommend that the complainant be given the option to engage with one of these services.
The complainant’s representative requests that the adjudicator award the complainant a sum of money due to the fact that the complainant cannot resume work with the respondent. There is no medical evidence to support this as a permanent arrangement.
This is not within the remit of this complaint.
I recommend that the complainant and the respondent agree a third party in accordance with the respondent’s own procedures to investigate his complaints and that this is implemented immediately.
I recommend that the respondent pay the complainant a week’s salary owing to their lack of direction in naming or suggesting third parties to investigate the complaints.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I recommend amendments and implementation of the agreed internal workplace procedures in the manner described and for the reasons stated above.
I recommend payment of one week’s salary to the complainant.
I recommend that the complainant is offered the services of an employee assistance provider.
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Complaint of bullying; non -use of procedure; lack of clarity about third party referrals