ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00014146
An Accounts Worker
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: 17/07/2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
In accordance Section 13 of the Industrial Relations Acts 1969 and 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.
The worker is employed in accounts with the company since the 26th January 1998. In May 2016 the owners of the company changed and the current employer a husband and wife team (Director 1 and Director 2) took over the running of the company. The worker has a dispute with them in relation to conditions of employment and alleged bullying and harassment.
Summary of Worker’s Case:
After the new owners took over the previous owner stayed on as a manager and the worker reported to her. She works 3 days per week for 4 hours per day. There were changes made to the days she worked and the previous flexible hour she enjoyed were changed to a rigid 9 to 1. The days she worked were changed from Wednesday, Thursday and Saturday to Tuesday Wednesday and Thursday. She said that she embraced the changes even though they did not suit her as her child has serious health issues and Tuesday was usually the day of his hospital appointments.
She said that she was confused about the reporting structure and she sought a meeting with the Directors to clarify the issue. She met Director 1 and outlined her problems and she also sought a restoration of her pay rates which had been cut by the previous owner. She believed that other employees had received wage increases.
Following this she was verbally offered new contract with extra hours. She said that the employer did not pay the agreed rates and she reverted back to working her old hours. She then had separate meetings with the Directors seeking to have the matter resolved. At the second meeting, she alleges she was bullied by the Director 2 and was not allowed to put forward any of the concerns she had raised in emails with Director 1 and was reprimanded by the Director 2 about the tone of her emails. After this meeting the worker alleged that Director did not talk to her and she was constantly ignored by her when she came to the office.
The worker, in an email to Director 2 dated the 25th of September raised issues about rude and dismissive behaviour towards her. In response Director 2 rejected the allegations and stated she would not be harassed. She advised her to take the matter up through the grievance procedures. She went on to say if the worker sent an email of this nature again that more formal action would be taken against her. The worker said that she was upset at the allegation of harassment and the threat in the letter and she sought legal advice. She then invoked the informal grievance procedure. An informal investigation took place under an external HR consultant. The bullying allegation was not upheld. The worker was given a right to appeal but she decided not to do so.
The worker is in dispute about the following matters:
She wants to be treated the same as other workers as regard pay rates;
Being ignored by Director 2 and her management style;
Paid time off to take her son to hospital appointments;
Nobody to talk to when she has a complaint;
Harassment allegation and the threat of “more formal action” contained in letter of the 29th of September 2017 be withdrawn;
Payment for Public Holidays.
Summary of Respondent’s Case:
The employer said that they did not put in a written response as they had come to the meeting with a view to resolving the issues. Following the outcome of the informal grievance procedure, the employer made a number of efforts to meet the worker to resolve the issues between them at mediation, but she refused to take part. She could have also appealed the outcome to the next level of the grievance procedure. Their HR consultant put forward a number of suggestions as to how the issues could be resolved.
In relation to restoration of pay rates, the employer said that the cuts had been made before they took over the business. They agreed that the rates of pay would be looked at by a HR consultant and a response provided to the worker before the end of August. That response will provide justification as to the reinstatement or otherwise of the original rates of pay and clarification of the rates paid to other employees.
As regards the complaint about the Director ignoring or not talking to the worker, this was denied. Director 2 said that she is not in that office very often as she runs another business from a different office. The worker was offered meetings to resolve this issue and she refused to attend. The HR consultant suggested that the parties should take part in mediation to resolve any interpersonal issues between them.
In relation to not being paid for taking time off to attend hospital with her sick child, the employer said that the worker only works 12 hours per week and it would be difficult to pay for such absences. They said that the only absences paid for are bereavements or attending a funeral. They agreed to implement policies for all employees regarding taking time off for appointments for family illnesses etc by the end of August.
In relation to the workers complaint that she has nobody to talk to about work issues, the employer said it was a small workplace. It was agreed that the worker should in the first instance speak to the operations liaison manager. She will then be guided by the HR consultant or the MD and a response will be issued to the worker within a reasonable time frame.
In relation to the letter of the 27 of September the employer said that the sentence “Should I receive an email of this nature from you again or you send a similar email to another member of staff, more formal action will be taken” will be withdrawn. The reference to harassment cannot be withdrawn.
In relation to payment for public holidays, the employer said a mistake had been made and this has been rectified.
Findings and Conclusions:
I have considered the written and oral submission of the worker and the oral submission of the employer. The initial issues between the parties concerned the restoration of a pay cut and a dispute about an oral agreement concerning an increase in hours and rates of pay for same. It is clear that both parties made genuine efforts to resolve the issues between them. However, these efforts were unsuccessful leading to a breakdown in communications and a bullying and harassment complaint by the worker. The response to the bullying and harassment complaint in the letter of the 27th September from the employer was ill judged and did not comply with good industrial relations practices. I accept that it was upsetting for Director 2 to have received a complaint from the worker accusing her of rude and aggressive behaviour but a worker has a right to refer a grievance if they believe they are being bullied or harassed. The content of the response at paragraphs 2,3 and 5 was not appropriate.
The complaint was referred for informal investigation under the grievance procedures and it was not upheld. I note the worker was given a right to appeal under the procedures but she did not pursue it. There is an obligation on a worker to exhaust all internal appeals before referring the matter to the WRC. I note also that the employer wrote to the worker seeking a meeting to put in place the “fresh start” recommendation by the investigator and this meeting did not happen. It is understandable that the worker was upset by the tone of the response from the employer when she raised the alleged bullying and harassment and I also recognise she was disappointed with the outcome of the investigation, but there is an obligation on a worker to cooperate with the employer in seeking to resolve issues and to move forward with the working relationship.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend the following:
That the worker appeals the outcome of the informal investigation to the next stage and to exhaust all internal appeal mechanisms before any further referral of the matter to the WRC;
That the employer withdraws paragraphs 2, 3, and 5 of the letter of the 27th of September 2017;
That the company’s grievance procedures and handbook are updated and copies given to the workers;
That the employer appoints an independent mediator and that the worker cooperates with the employer under the auspices of the mediator to resolve any interpersonal/communication issues between the parties;
That the restoration of the pay rates be referred to a HR consultant as outlined by the employer;
The introduction of a policy for personal appointments and family illnesses as outlined by the employer and ensuring that all workers are treated equally as regards pay and conditions for such appointments;
That the operations manager is the worker’s first line of communication regarding issues arising in the workplace;
That the worker is paid 2.4 hours in respect of public holidays based on working12 hours per week.
Workplace Relations Commission Adjudication Officer: Marian Duffy
Section 13 Industrial Relations Act, exhausting internal grievance procedures, bullying harassment.