ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00009350
Parties:
| Complainant | Respondent |
Anonymised Parties | Receptionist | Legal Firm |
Complaint(s):
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-00012292-001 | 04/07/2017 |
Date of Adjudication Hearing: 23/01/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
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 was employed as a Receptionist with a firm of solicitors earning €27,500.00 per annum. Employment commenced in September 2015 and terminated in June 2017. The complainant worked full-time in the respondent’s office. The complainant had issues in the workplace and lodged a grievance in relation to alleged bullying and harassment. The respondent employed an outside party to investigate the complaint. The complainant was unhappy with the conduct of that investigation and with the outcome which stated that her allegations were unfounded and malicious. Following discussions with the respondent the complainant decided that she had no option but to resign. The complainant then referred the dispute to the WRC. |
Summary of Complainant’s Case:
The complainant was subjected to bullying and harassment by the principal owner and two other employees. The complainant’s initial complaints were dismissed by the respondent. The complainant went on sick-leave in April 2017 due to the stress that she was suffering in the workplace. The complainant lodged a grievance report and was told by the respondent that there would be an investigation. The complainant was advised to remain out on paid leave during the investigation. An outside consultant was employed to investigate the complaints and met with the complainant. The complainant was concerned as the consultant had been employed on previous occasions by the respondent and the complainant did not consider him to be independent. The consultant’s final report concluded that the complainant’s allegations were not only unfounded but went on to state that they were malicious. The complainant informed the respondent that she was unhappy with the report and requested another investigation. At a meeting to discuss the report the complainant stated that she felt that she could not return to her employment and the owner agreed with her. The complainant therefore felt that she had no option but to resign and wrote accordingly to the respondent.
|
Summary of Respondent’s Case:
The complainant made a complaint about alleged bullying. The respondent appointed an outside consultant to investigate the complaint. The complainant’s allegations changed during the course of the investigation. The complainant’s allegations were refuted by other employees and the report concluded that the allegations were unfounded. The complainant was afforded the benefit of fair procedures throughout the investigation. The complainant sought a redundancy package and when this was refused the complainant resigned without good reason and with the expressed intention of pursuing a claim against the respondent. |
Findings and Conclusions:
The complainant commenced employment with the respondent in September 2015. Her position was that of receptionist and she had previous experience of working in a solicitor’s office. About 10 staff in total worked in the office. Issues arose for the complainant in July 2016 and she made a complaint about bullying to the principal solicitor. This led to a meeting being convened by him which was attended by the complainant and the person against whom she had made the complaints. According to the complainant, the outcome was unsatisfactory and inconclusive. The respondent, however, was of the view that the issue had been resolved by the reassignment of some duties. The complainant then went on holidays and when she returned matters seemed to have calmed down. An issue then arose in relation to the Christmas party and the complainant did not attend same. The complainant felt that relations between herself and two of the legal team (including the person who was the subject of the first complaint) were deteriorating and that they combined together to make life difficult for her. There were also problems in regard to managing the diaries of the legal staff. A number of matters occurred in March / April 2017 and, according to the complainant, the attitude of these staff caused her a great deal of stress. Finally, the complainant went out on sick leave and texted the principal solicitor that she was suffering from stress related to her work. The complainant was requested to put her issues in writing which she did. In the document she named the two members of the legal staff but included the principal solicitor also as an instigator of the events. The complainant then attempted to return to work but was advised by the principal solicitor that she should remain absent on paid leave while her complaints were being investigated. The respondent engaged a HR consultant who had done previous work for them to conduct the investigation. The consultant interviewed the complainant. The consultant also interviewed the main persons that were the subject of the complaints and forwarded their statements to the complainant for comment. The consultant then decided to interview every member of staff and discussed the complaints made by the complainant with them. In his conclusion the consultant stated that “allegations of bullying, discrimination or ostracism within (the firm) are unfounded.” The consultant concluded his report by stating “I am of the view that the allegations were at best self-serving and at worst malicious.” The report was then given to the principal solicitor who forwarded a copy to the complainant. In an email the complainant said that she was unhappy as she did not accept the impartiality of the consultant and requested a new investigation. A meeting took place on June 22 2017 between the complainant and the principal solicitor to discuss the report. The complainant expressed the view that it would now be very difficult for her to return to work. The complainant said that the solicitor agreed with this assessment. The solicitor, for his part, stated that the complainant enquired as to redundancy but that he said that it was not a redundancy situation. Following a further exchange of correspondence the complainant formally resigned a few days later. It is not within the capacity of an Adjudicator to carry out a further investigation of these matters to ascertain whether a person was bullied or not bullied. What can be looked at is whether there were procedures in place to deal with bullying and whether the employer properly investigated complaints of bullying. I am aware of the difficulty of a small employer (10 employees in this case) in addressing allegations of this kind, particularly when the principal of the firm is one of those included in the complaints. The personal impact of being the subject of such allegations can be significant and I note that it appears that one member of the staff, who was in that situation, considered resigning. I am also bearing in mind, however, that this is a legal firm well versed in employment law. The complainant was issued with a copy of the Code of Practice Detailing Procedures for Addressing Bullying in the Workplace. This of course is a document setting out general guidelines and is not specific to the firm in question. This Code of Practice states at Paragraph 8(d) that “the investigation should be carried out by either a designated member or members of management or, if deemed appropriate, by an agreed third party. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due regard for the rights of both the complainant and the alleged perpetrator(s).” It is clear that it would not have been appropriate for any member of staff to carry out this investigation but the respondent did not seek the agreement of the complainant in relation to the third party engaged to conduct the investigation. This would have avoided the disagreement that occurred as to the choice of investigator. The decision of the consultant to interview every member of staff is set out thus: “To gain a broader assessment of the attitudes and practices within the Practice, I individually interviewed every other member of staff, most of whom have many years’ service. No one supported the claims made by (the complainant).” This approach does not sit well with the principle laid out in the Code of conducting the investigation with sensitivity and utmost confidentiality. Finally, the consultant took the step of going beyond a conclusion that the complainant’s claims were unfounded and added the rider that in his view the allegations were at best self-serving and at worst malicious. These are very serious findings and there is no great detail in the report as to how the consultant reached this conclusion. In summary, the complainant was advised to absent herself from the office while the investigation took place, a third party was appointed without her agreement to carry out the investigation, the investigator discussed her complaints with every other member of staff and his report was to the effect that all complaints were unfounded and her allegations were self-serving and/or malicious. It is understandable therefore that the complainant formed the view that the object of the exercise was to facilitate her departure from the firm. This view was reinforced when the meeting took place with the principal solicitor to discuss the report and he agreed with the complainant’s remark to the effect that she could not see herself returning to work. The respondent stated that it was their wish that the complainant take some time to consider her position. The email that was sent to the complainant following the meeting noted her wish not to return to work and then went on as follows: “I suggest that we might postpone acceptance of that say to end of June and that we would cover your weekly payment up to that time, which would give you another 5 to 6 weeks approx. support.” This communication did not request that the complainant reconsider her position, it merely suggested that acceptance of her resignation be deferred up to the end of June. I have concluded, therefore, that the manner in which the respondent addressed the complaints was defective and that the complainant consequently found herself in a situation where her position with the respondent had become untenable. I note that the complainant has been successful in gaining employment within a matter of months. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having considered all matters and taken into account the submissions made by both parties, I recommend that the respondent offers and the complainant accepts the sum of €9,000.00 in full and final settlement of all claims arising from her employment with the respondent. |
Dated: 16/03/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words: